Breach Of Article Research Articles

Cyber Warfare as a Use of Force against Third-Party Countries: The Perspective of International Law

The use of force in international relations takes different forms and changes year by year due to the development of cyber technology. The problem mentioned in this study is that the Charter of the United Nations (UN Charter) and international law have not considered weapons development and future weapons that may be used in international relations, as Russia has used such weapons during the war against Ukraine. Unfortunately, cyber technologies were used to deter and weaken Ukraine’s chance to gain an advanced result on the ground. Although such cyber operations can cause the same physical damage as other weapons, the international community is still struggling to determine whether using a cyber weapon is considered a use of force. This study argues that cyber attacks against third-party countries that support Ukraine during the war may count as the use of force and a breach of Article 2(4) of the UN Charter.

The Rwanda-United Kingdom Refugees and Asylum Seeker Deal: Absolved Responsibility?

In April 2022, the United Kingdom (UK) government announced the signing of a deal with the Rwandan government to ‘transfer’ asylum seekers entering the country through illegal means, for processing in the African country. The argument was that UK’s Nationality and Border Protection Act of 2022 prevents persons who enter the UK illegally from being processed in the country. Reasons cited include to deter people from taking treacherous journeys across the English Channel, sharing the global refugee ‘burden’, and to cull the business of illegal traffickers, among others. Human rights activists have however, critiqued the deal, stirring dialogue on different platforms. With this interrogation, the dirge was what next steps can the two countries take? The objective of the paper was to unearth the real context, pros and cons related to the deal, using desk research, through a review of related literature. Findings were that as both countries are signatories to the United Nations Convention on the Status of Refugees, they are in breach of Articles on non-penalization, non-expulsion, and non-refoulement, respectively. They are also in breach of the Global Compact for Migration, which seeks, among other things, to share the global‘ refugee burden’. By sending asylum seekers to Rwanda, the UK is absolving itself of the responsibility to share that burden. The paper bemoans the growing trend by Western states to transfer asylum seekers to other states, as if they were commodities: summarized as gross violation of human rights. The recommendation is for the deal to be rescinded, allowing asylum seekers the right to choose the country that they wish to seek their asylum in, without fear of reprisals, or further exacerbating their vulnerability.

Minimum Service Levels During Strikes and the Misuse of Comparative Law

Minimum Service Levels During Strikes and the Misuse of Comparative Law Nicola Countouris (bio) In January 2023, UK Prime Minister Rishi Sunak1 said minimum service levels (MSL) are "present in France, in Italy, in Spain", while then-business secretary Grant Shapps2 claimed the legislation "simply brings us into line […] with many other modern European nations, such as Spain, Italy, France". On more than one occasion, UK government officials have made great use of comparative law arguments to justify the introduction of new, draconian, minimum service level obligations under the Strikes (Minimum Services Levels) Bill 2023, which at the time of writing is nearing its third and final reading in the House of Lords. Almost exactly half a century ago, in June 1973, Sir Otto Kahn-Freund, arguably the founding father of modern UK labour law, delivered a special lecture, later published as an article by the Modern Law Review, entitled "On Uses and Misuses of Comparative Labour Law". In that lecture he warned against the introduction in English law, by means of the 1971 Industrial Relations Act, of a number of "specimens of attempted transatlantic transplantation" (particularly in the domain of collective bargaining, but also some affecting cooling off pauses and compulsory ballots in emergencies) stressing the high risk of "rejection" of these transplants that, the very different British legal, industrial, and political tradition, would most likely identify as a "foreign body" to be expunged. In the case of the key provisions being envisaged by the Strikes (Minimum Services Levels) Bill 2023, it would be perhaps more appropriate to recur to a different metaphor, borrowing not from the science of organ transplant but rather from the literary domain and Mary Shelley's 19th Century three volume novel Frankenstein. In this instance, it is fair to say that the UK government is practicing comparative labour law more or less in the way Dr Frankenstein practices surgery. As the following sections will discuss, the Bill brings together, into a single text and within what is already a rather tormented creature – i.e. the existing British laws on strikes - a selection of restrictions more or less present in other legal systems but that once stitched up together will invariably form a legal abomination, a hideous creature, that will not stand the scrutiny of European and international labour law standards. Poor comparators: Spain and France In a recent commentary3 published by the Institute of Employment Rights, Professor Ewing and Lord John Hendy KC already highlighted the poor choice of comparators for the UK to emulate when introducing MSL legislation. At least since 2018, Spain has been facing complaints before the ILO's Committee of Experts on the Application of Conventions and Recommendations (CEACR) in respect of the "abusive" operation of minimum service levels, ostensibly in breach of Article 3 of Convention 87. More specifically, Spanish unions CCOO and UGT have sent direct requests to the Committee complaining that "in an important number of … essential services, the Government authorities refuse to enter into dialogue with trade unions for the determination of minimum services and instead establish them in a unilateral and abusive manner" something that has "given rise to court judgments finding the determination of minimum services and the replacement of workers abusive"4. In 2023, it was once again put to the CEACR that "the rules on the determination of minimum services continue to be repeatedly violated by the government authorities, and that the CCOO cites, in this regard, 13 recent court rulings that determine, in relation to minimum services, a violation of the right to strike". The Committee has noted "with regret" the Spanish authorities' failures to engage with these allegations in the pasts, reiterating its "requests the Government to provide its comments on the allegations … on the frequent failure by the government authorities to comply with the rules on minimum services". So, to the extent that s.234B of the Bill grants a unilateral and unrestricted power to the Secretary of State to specify minimum service levels, it is safe to suggest that it seeks to transplant within the UK a provision that is already tainted by unlawfulness and incompatibility with international and regional labour standards. France is of...

EU General Court Upholds Commission Gun-Jumping Decision: Altice Europe NV v Commission

Judgement of 22 September 2021, Altice Europe NV v Commission, Case T-425/18, EU:T:2021:607. The General Court upheld the European Commission’s decision finding that Altice Europe infringed the European Union Merger Regulation’s prohibition against implementing a notifiable transaction before notification and approval. On 9 December 2014, Altice Europe (‘Altice’), a Dutch-based cable and telecommunications company, agreed to acquire sole control of PT Portugal, a Portuguese telecommunications and multimedia operator, subject to approval by the European Commission (the ‘Commission’) under Regulation 139/2004 (the ‘EUMR’). Altice notified the transaction to the Commission under the EUMR on 25 February 2015, and the Commission approved the transaction, subject to conditions, on 20 April 2015. On 24 April 2018, the Commission adopted Decision C(2018) 2418 (the ‘Decision’), fining Altice for putting the transaction into effect in breach of Article 4(1) and Article 7(1) EUMR; i.e. for gun-jumping. Article 4(1) EUMR requires parties to concentrations with a Union dimension to notify their transaction before implementation, whereas Article 7(1) EUMR prohibits the implementation of a concentration with a Union dimension before its notification or until it has been approved. The Commission imposed a fine of EUR 62,250,000 for each violation.

The Aggression of the Russian Federation against Ukraine: International Law and Power Politics or ‘What Happens Now’

The article deals with the relationship between international law and power politics in the light of the Russian aggression against Ukraine. The relationship between international law and politics is very close, even natural, since the principles and rules of international law primarily act in international relations, that is in a political reality. It is the problem of observance and violations of the legal principles and rules on the use of force that is the key point of reference for the discussion of this issue. The serious breach of Article 2(4) of the UN Charter by Russia, the crime of aggression and other alleged crimes committed during this international armed conflict incline the author to address some questions on the power and weakness of international law. The power of international law is severely tested when it comes to the unilateral use of force by states. The Russian aggression against Ukraine is arguably the most important such test since the end of World War II, at least in Europe. The author claims that such crises as the Russian aggression against Ukraine clearly prove that international law is what states want it to be.

The Principle of "Non-Refoulement" and its Evolution in the Jurisprudence of the European Court of Human Rights

The principle of non-refoulement provided for by Article 33 of the Geneva Convention constitutes a principle of international law with a significant role in the protection of human rights. This principle has been confirmed by the European Court of Human Rights, which has affirmed the state's responsibility for returning an asylum-seeker to a country where he risks being subjected to inhuman and degrading treatment or torture, in breach of Article 3 of the European Convention on Human Rights. Considering this reasoning, in the case of Hirsi Jamaa and others v. Italy, the European Court of Human Rights found the Italian State responsible for violating Article 4 of Protocol No. 4 for the collective refoulement of migrants without a procedure for assessing their individual situation in a state where they could face inhuman and degrading treatment, as well as for violating Article 13 of the European Convention on Human Rights, as the applicants had been denied the opportunity to appeal before the expulsion measure was carried out. Recently, the European Court of Human Rights' orientation has changed since, in the case of N.D. and N.T. v. Spain, the Court excluded the violation of both Article 4 of the 4th Protocol and Article 13 of the European Convention on Human Rights, stating that the collective rejections were due to the “applicants' own conduct”. This decision entails many perplexities regarding the protection of human rights.
 
 Received: 24 January 2022 / Accepted: 19 March 2022 / Published: 5 May 2022

A Case Study of National Power Limited

National Power Limited (NPL) was a public sector undertaking of the Government of India under the Ministry of Power, having a total generating capacity of 4,860 megawatts of coal-based thermal power. NPL had seven power plants in operation across three states in the northern part of the country, with 8,212 employees. The case describes an appointment of a non-executive post at a power-generating plant of NPL, which is referred to as the Chandanpur unit. This appointment was made to honour an unprincipled demand by the Minister of Forestry and Environment of the concerned state government. The matter got exposed through a complaint received by the Vigilance Department of NPL. The manager of the coal handling department of the Chandanpur unit had lodged the complaint, mentioning the possibility of anomalies in the appointment. On verification, it was found out that the executive director of the Chandanpur unit had appointed a person in the highest supervisory post of that unit by flouting all rules and guidelines of recruitment in the organization. Anomalies included not taking approval for upgradation of the offer made initially, interviewing directly without holding any written test and changing the minimum eligibility criterion for the post. All this was a major breach of Article 14 of the Constitution of India, which confers the right to equality to a citizen of India as a fundamental right. Based upon findings of the investigation report, the culpability established in the irregularity and gross violation of the established rules of NPL, major disciplinary proceedings were initiated against all the involved officials and the appointee. Since it was a criminal case, it was also referred to the Federal Investigating Agency for further investigation and prosecution of the offenders. All NPL executives involved, and the appointee was implicated, though no culpability could be established against the Minister or his confidential assistant.

Analysis of the Cultural Homeward Trend in International Trade Laws

Article 7 of the Vienna Convention on Contracts for the International Sale of Goods (‘CISG’) mandates that the convention must be interpreted uniformly without recurse to domestic principles. This article demonstrates that the homeward trend – the tendency to project domestic laws onto the international provisions of a Convention is breach of article 7(1). However, art 7(2) alerts the reader that some matters are not expressly settled but must be settled by recourse to general principles within the CISG and again no recourse to domestic laws can be sought even if the terms track domestic laws. This article argues that a distinction must be draws if vague terms vague terms such as reasonable time must be interpreted. These terms are not governed by laws but are subject to factual events such as customs or universal understanding.

Admissibility of Statements Obtained as a Result of “Private Torture” or “Private” Inhuman Treatment as Evidence in Criminal Proceedings: Emergence of a New European Standard?

Este artigo apresenta uma análise crítica da posição firmada pelo Tribunal Europeu de Direitos Humanos sobre a admissibilidade da prova (declarações gravadas) obtidas como resultado de “tortura privada ou tratamento inumano”, quando essa gravação tenha sido produzida fora de um processo criminal e não a ele direcionada. Conforme a visão do Tribunal, recentemente assentada (caso Ćwik v. Poland), o uso dessa prova em um processo criminal conduzido contra terceira pessoa, não contra a pessoa torturada, acarreta que esse processo seja automaticamente considerado injusto, em violação do art. 6 da Convenção Europeia de Direitos Humanos. Sustenta-se que a decisão do Tribunal não ponderou adequadamente a importância do fato de que o uso dessa prova não pode ter qualquer impacto na finalidade ou no nível de proteção contra a tortura ou outras formas de tratamento cruel, conforme as diretrizes do processo penal. Afirma-se que as declarações gravadas produzidas por indivíduos privados, sem o consentimento ou autorização de agentes públicos, anteriormente ao processo penal e não a ele dirigidas, por métodos contrários ao artigo 3 da Convenção devem ser consideradas provas admissíveis. Consequentemente, o Tribunal Europeu não deveria ter questionado a admissibilidade dessa prova, mas verificado a adequação do processo penal em sua integralidade às diretrizes do justo processo.

Trade War for Trans-Border Basmati Label - an Assessment of Select Legal Issues Before the European Commission

On 11 September 2020, the DG Agriculture at the European Commission published contents of a unilateral Application No. PGI/IN/02425 for the registration of the term “Basmati” as a Protected Geographical Indication (PGI) in relation to aromatic rice products. The aforesaid application has been filed by India, through its Agricultural and Processed Food Products Export Development Authority (APEDA). Pakistan (as a stakeholder country itself), along with its Rice Exporters Association have lodged their oppositions against the aforesaid application before the DG Agriculture of the European Commission. In its Application No. PGI/IN/02425, India/APEDA chose to move ahead unilaterally to apply for the PGI of Basmati, and failed to mention the geographical areas of Pakistan that should also be covered in the same since Basmati is a trans-border PGI. It is the humble view of the authors that India’s/APEDA’s Application No. PGI/IN/02425 is hit by the principle of estoppel; is in breach of European Commission’s ‘Guide to applicants: How to compile the single document’; and is in breach of Articles 5(2)(a), 5(2)(b), and 7(1)(a) of Regulation No. 1151/2012. For convenient reading, the body of this article has been arranged into six parts. The first part serves as an introduction. The second part highlights past instances where the European Commission has recognized trans-border PGIs that originate from two countries. The third part identifies the legal issues that can arise in a dispute for trans-border geographical indication. The fourth part focuses on historical origin and reputation of Basmati as a trans-border PGI under Article 7(1)(a) of Regulation No. 1151/2012. The fifth part provides an overview as to the link with the geographical area for Basmati as a trans-border PGI under Article 5(2)(a) and (b) of Regulation No. 1151/2012. The sixth part serves as the conclusion to this article.

The Case of the Eight Turkish Military Personnel who Sought Asylum in Greece after the Failed 2016 Coup in Turkey: Fair Trial as a Reason Precluding Non-Refoulement and (Stricto Sensu) Proportionality

The paper is devoted to Stavros Tsakyrakis and uses a case - in which he was involved - as a case study allowing to advance two sets of key arguments concerning the power of Article 6 ECHR to bar refoulement. The case study concerns the extradition of eight Turkish military personnel who sought asylum in Greece in the wake of the failed military coup in Turkey, in July 2016. As far as the first set of arguments is concerned, the ECtHR has established that Article 6 can effectively prohibit extradition where the applicant risks facing, if returned to the requesting state, a ‘flagrant denial of justice’. The paper argues that, although the Greek courts did not properly engage in the aforementioned case of the eight Turkish servicemen with the relevant ECtHR case law, they ultimately reached the correct decision when they barred refoulement on the basis of Article 6. As to the second set of arguments, the starting point is that non-refoulement comes at a cost (diplomatic, economic etc.) for the host state. This cost is the reason why only a limited number of human rights, i.e. rights that have a special moral weight, have been viewed by the ECtHR as generating non-refoulement effects. In that respect, the paper discusses the absolute prohibition contained in Article 3 and the morally weighty -but not absolute- right enshrined in Article 2 as reasons precluding refoulement, and juxtaposes these two ECHR Articles to Article 6. In respect to Article 6 ECHR, the paper notes that, according to the ECtHR, not any denial of justice may block non-refoulement; a quality threshold applies, according to which a denial must be ‘flagrant’. Moreover, the paper argues that, to duly assess when claims under Article 6 should prohibit refoulement, one should counterbalance the (associated with interests and human rights) cost of non-refoulement against a further criterion. Outside of the traditional factors a court must take into account to determine whether flagrant breaches of Article 6 may occur in the receiving state, it should also examine the object of legal proceedings overseas, i.e. what interests and rights proceedings concern and the importance thereof. This requires balancing through stricto sensu proportionality as a means to prioritise -within the context of the special set of facts of a particular case- the rights that are morally weightier.

The practice of the Supreme Court and the decisions of the European Court concluding violations of artic - le 3 of the Convention

Law enforcement practice of the Supreme Court in cases involving torture in the light of the standards of the European Court ofHuman Rights. The article is devoted to the study of individual legal positions of the Supreme Court, their coordination with the practiceof the European Court of Human Rights. The author emphasizes that the decisions of the European Court should serve as precedents,which will make it impossible to produce diametrically opposite decisions on similar categories of cases. Analysis of the problem ofcriminal responsibility for torture allows us to form conclusions and suggestions that are important for the development of the theoryof criminal law and the improvement of law enforcement practice.The article deals with the issues related to the peculiarities of the interpretation and application of Article 3 of the European Conventionon Human Rights of the European Court of Human Rights. In particular, the scope of Article 3 has been analyzed; it has been de -fined, what is necessary to understand under concepts of torture, inhuman or degrading treatment or punishment. Substantive and proceduralaspects of violations of the prohibition of torture have been revealed, as well as positive and negative obligations of a state to providethe effective protection of the right. The standards of the appropriate assessment of ill-treatment and the main aspects of judicial qualificationof a particular form of mistreatment as torture have been analyzed. The procedural guarantees, which must be provided for each personat the stage of pre-trial investigation, non-observance of which leads to a breach of Article 3 of the Convention, have been determined.Creation of the effective system of protection of human rights and its efficiency is analysed in relation to the crime of “torture”in the context of European Convention on human rights, which must be in future stored and taken for basis for a further improvementand systematization of the single European standards in area of human rights.

Neoinquisitorialismo processual penal e a contaminação do julgador com os atos de investigação: a burla interna no processo penal brasileiro como obstáculo ao contraditório

Este artigo analisa a permanência da cultura inquisitória na América Latina e o peso da mentalidade inquisitória dentro do processo penal brasileiro, especialmente na fase preliminar, que trata do núcleo principal da formação probatória utilizada pelo julgador na sentença, no intuito de responder o seguinte problema: quais os principais obstáculos no processo penal brasileiro na contemporaneidade para que haja um julgamento efetivamente em contraditório? Para tanto, avalia-se por meio de estudo de doutrinas clássicas e contemporâneas as implicações na legitimação admitida pelo processo penal brasileiro, principalmente por meio do “jogo sujo” trazido pela brecha do artigo 155 do Código de Processo Penal, que contamina o magistrado com o inquérito policial e em conjunto com significantes como “livre convencimento” e “verdade real” servem como obstáculos para que haja um julgamento fundado apenas em atos produzidos em contraditório e com a participação de todas as partes envolvidas no processo.

Interpretation of the terms “torture”, “inhuman treatment”, “degrading dignity of treatment or punishment” in the understanding of the European court of human rights

Problem setting. According to the data as of 01.01.2020 in the register of the European Court of Human Rights (ECtHR) are registered 8850 applications filed against Ukraine, which is 14.8% of the total number of applications. And although Ukraine took 3rd place (in 2017 Ukraine ranked first) in the number of complaints against it to the ECtHR, after Russia (15,050 complaints) and Turkey (9,250 complaints), it should be noted that a significant number of complaints, namely 40 complaints are still in breach of Article 3 of the ECHR (prohibition of torture or inhuman or degrading treatment or punishment). Thus, the correct interpretation and understanding of the concepts used in Article 3 of the ECHR is very important for Ukraine, it is related both to the quality of adopted laws and to the practice of the authorities, especially law enforcement and courts. Analysis of recent researches and publications. The research of certain aspects of the interpretation of the concepts of Article 3 of the ECHR was studied by the following Ukrainian legal scholars: Orlova O.O., Trykhlib H., Tsebenko S., Okhota Y., Shishkina E., Rabinovych P. , Pushkar P., Fuley T., Chervyatsova A. Target of research is interpretation of the concepts used in Article 3 of the Convention on the basis of judgments of the European Court of Human Rights, for their proper understanding and application. Conclusions and prospects for the development. Thus, the prohibitions in Article 3 of the ECHR are absolute and unconditional. Prohibition of torture or inhuman or degrading treatment or punishment is one that contains no exceptions, regardless of the situation in which the person is. This norm is an imperative norm and clearly reflects the basic (fundamental) values of a democratic society, and any violation of it by the international community is considered a gross violation of human rights. Everyone has the right to be treated with dignity by others, regardless of individual characteristics, circumstances or place (in hospitals, at large, in places of imprisonment). Everyone should be aware of the inadmissibility of such actions, and these prohibitions should not only be declared, but also implemented. In general, the ECtHR has a positive effect on respect for human rights in Ukraine and is a real mechanism for protecting citizens in many cases.

The United Kingdom’s Presumption of Derogation from the ECHR Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 ECHR, and à la carte Human Rights Protection

The paper discusses the intention of the UK government to derogate from the European Convention on Human Rights (ECHR, the Convention) before embarking on military activities overseas, arguing in respect to the suitability of this policy that it (the policy) cannot serve its intended goals but to a limited extent, whilst also possibly generating undesirable legal side-effects. In particular, the ‘presumption to derogate’ –as the UK government labels it– may lead to an abuse of rights, among other reasons discussed in the study, because it is essentially meant for purposes that are not prescribed by the Convention, that is to say, because the aims pursued are not aligned with the raison d’etre (the object and purpose) of Article 15 ECHR that permits derogation from the rights enshrined in the Convention. The UK may be reproached of acting mala fide (in bad faith), thereby being in breach of its obligation to perform the ECHR in good faith. To prepare the ground for this argument, the study critically explores the concept of “abuse of rights” from a theoretical perspective, first, in terms of general international law and, second, within the ECHR system. This way it contributes to the literature on abuse of rights in ECHR law -highlighting especially the function and the role that Article 18 ECHR can play in that respect. To that end, it discusses in a critical fashion the case law of the European Court of Human Rights, criticizing in particular the test regarding Article 18 that the Grand Chamber established in Merabishvili. A derogation under the UK policy in breach of Article 15 ECHR might also amount to an abuse of rights under Articles 17 and 18 ECHR and under the general principles of international law that prohibit bad faith and abuse of law. This, however, does not mean that there might not be cases of future British military operations overseas that lawfully justify a derogation from the ECHR. However, irrespective of their lawfulness under Article 15, such derogation may still be abusive if they predominantly pursue mala fide goals that are foreign to the rationale behind the restrictions permitted by the Convention. Finally, in its conclusions, the study argues that the UK’s intention to derogate from the ECHR when embarking in military activities outside of its territory might be seen as symptomatic of a broader trend of (British) skepticism vis-a-vis the ECHR regime and its institutional apparatus that reflects the legitimacy challenges that the ECHR is currently facing.

The obligation to investigate after a potential breach of article 2 ECHR in an extra-territorial context: Mission impossible for the armed forces?

The growing number of military operations conducted by States Party to the European Convention on Human Rights abroad has led to a concomitant surge in court cases, notably relating to the duty to investigate an attack resulting in the death of an individual. Using the example of the British armed forces abroad, this article contends that the principles enunciated by the European Court are difficult, sometimes impossible, to fulfil when military operations are carried out abroad. The Court at times appears to fail to recognise the inherent challenges faced by States in complying with these principles. This article thus suggests that the Court offers a more flexible approach towards compliance with the procedural aspects demanded under Article 2 ECHR, especially regarding the initial phases of the application of Article 2 ECHR, when the armed forces are directly implicated in the procedure.

The European Court of Human Rights’ Jurisprudence on Austria 2018

The year 2018 brought a limited number of only five judgments in relation to individual applications directed against Austria. Three of these judgments related to the “usual suspect” in terms of affected Convention rights, ie Article 6 of the Convention, and Austria was found to have violated this provision in all of these cases. In contrast, Austria was not found in breach of Article 10 of the Convention in the most prominent decision of 2018, the E.S. case. The fifth judgment represents one of the rare cases of revision of a judgment of the Court.

Ochrona praworządności w Unii Europejskiej – węzłowe problemy

Reforms of the judicial system implemented in Poland in recent years and the rule of law proceedings initiated in their aftermath by the European Commission in January 2016 have contributed to the discussion within the framework of the international scholarly conference “Protecting European Union Values: Breaches of Article 2 TEU and its Consequences” organised by the Chair of European Law, Faculty of Law and Administration, in cooperation with the Max Planck Institute in Heidelberg. Basing on the speeches presented during the conference, in this article authors define the concept of the rule of law as one of the fundamental EU values, as well as analyse the existing violations of the rule of law in other Member States. An attempt was also made to assess the mechanisms protecting the rule of law, which result from the treaties (including Article 7 TEU and Article 258 TFEU), and propose supplementing them with a decentralised rule of law protection mechanism. Such mechanism should engage the whole EU legal system, including national courts, in protecting EU values, as assumed by the concept of “Rule of Law Argument” and the horizontal Solange test.

The Parliamentary Assembly of the Council of Europe and the Sanctions Against the Russian Federation in Response to the Crisis in Ukraine

The article examines the actions taken by the Parliamentary Assembly of the Council of Europe (PACE) against the delegation of the Russian Federation in response to the crisis in Ukraine. In 2014 the Assembly decided to suspend some of the rights of the Russian delegation and menaced to annul the credentials of the delegation if an effective effort was not made on the part of Russia to sort out the situation and to reverse the annexation. The adoption of sanctions against the Russian delegation raised several legal issues related to the very existence of a sanctioning power of the CoE and in particular of the Assembly. The question is whether the powers to “penalize” the parliamentary delegation have been exercised by PACE in conformity with the Statute. The Statute of the CoE does not attribute sanctioning powers to the Assembly in order to target the states which are in breach of Article 3 or international law more generally. This power falls firmly in the hands of the Committee of Ministers as a way to put pressure on, deter, and eventually punish a state which has seriously violated the core of the principles of the CoE system. PACE, in the exercise of its functions, may certainly contribute to activating procedures to monitor the activities of the member states, but the last word is in the hands of the Committee which may suspend the rights of representation of a state and request that the offending state withdraw from the Committee entirely. The Statute plainly does not attribute this power to PACE. In the absence of the jurisdiction of a Court to deal with the problems caused by the lack of harmonisation between the sanctions adopted by the Committee of Ministers and the ones introduced by the Parliamentary Assembly through some modifications of the Rules of Procedure, the recent call for a 4th Summit of Heads of State and Government of the CoE by the Assembly in order to “preserve and further strengthen this unparalleled pan-European project currently threatened by divisions and a weakening of member States’ commitment” by “harmonising[…] the rules governing participation, representation and responsibilities of member States in both statutory organs, while fully respecting the autonomy of these bodies” should be welcomed.

Women’s participation in sport: how is it regulated in international human rights law, and is Australia meeting its international obligations?

ABSTRACTThis article explores the right under Article 13(c) of CEDAW of women to participate in sport on an equal basis with men. As this right has largely been neglected in the international legal sphere, the article draws on feminist scholarship in order to unpack the right and analyse its usefulness and weaknesses. In particular, the limitations of terms such as ‘women’ and ‘equality’ in the current international legal climate are contemplated, as well as the practice of sex segregation in sport. The article also considers Australia’s compliance with Article 13(c) of CEDAW by examining Australian legislation and case law in relation to women’s participation in sport. It argues ultimately that Australia is in breach of Article 13(c) for failing to provide equal participation in sport for women.