Obligations Of Cooperation Research Articles

World Pandemic Control in International Law: Through a Transboundary Harm Perspective

The current pandemic response system under the International Health Regulations has been considered unsatisfactory in controlling world pandemic outbreaks. Opinions are voiced that a legal evolution incorporating other sources of international law is imperative to meet the system’s primary deficiency: the uneven degree of State compliance with the ‘core capacity’ requirements. Against this background, this paper aims to examine the potential application of transboundary harm rules in world pandemic prevention, where existing treaty obligations are insufficient or ineffective in addressing future obstacles. By comparing their conceptual characters and legal elements, this paper seeks to reveal the inherent link between the two domains, which may further demonstrate an existing manifestation of transboundary harm rules as emerging customary international law in current pandemic prevention practice. Based on the structure of transboundary harm rules, this paper aims to provide an innovative legal framework that justifies the differentiated standards among States with uneven capacity and underlines the obligation of cooperation. Such a framework is designed to improve the level of States’ prevention and response towards future global health emergencies raised by world pandemics. Moreover, it hopes to provide practical ideas for formulating the new international instrument on pandemic prevention, which is currently being drafted by the Member States of the World Health Organization.

International legal framework on maritime piracy

The article examines the phenomenon of piracy crimes based on the study of the international legal framework. The goal set by the authors is to identify possible ways and mechanisms by which States will be able to carry out effective international cooperation to bring pirates to justice and reduce the number of pirate attacks. The authors note that the beginning of the development of the efforts of the international community in the field of combating piracy falls in the middle of the 19th century. Further attempts to create a treaty at the beginning of the 20th century did not lead to success, but laid the foundation for the adoption of the 1958 Convention on the High Seas and the 1982 UN Convention on the Law of the Sea, which contain the universally recognized concept of piracy. The authors analyze the main elements of the crime of piracy (an illegal act of violence or detention, or any act of depredation; private ends; the “rule of two ships”; outside the jurisdiction of any State) and consider controversial issues of interpretation of these elements. Attention is drawn to the fact that existing sources aimed at countering piracy crimes include the obligation of States to cooperate. Since they do not contain specific forms of international cooperation, but are only limited to a general obligation to provide assistance to the maximum extent possible, the authors consider it appropriate to interpret the obligation of cooperation broadly to include such forms as extradition and mutual legal assistance in the prosecution of piracy crimes. The authors investigate the activities of international and regional organizations in the field of combating piracy and their proposed methods and mechanisms aimed at reducing crime on the high seas. The initiatives proposed by the Russian Federation to combat piracy are being considered.

Prekogranični problemi i saradnja u oblasti životne sredine u propisima Hrvatske, Srbije, Crne Gore i Bosne i Hercegovine

The article discusses the normative framework of cooperation in the domain of environmental protection among four countries in the region of Southeastern Europe. One of the countries is an EU member (Croatia), two others have the status of a candidate country (Serbia, Montenegro), and the fourth one is in the process of receiving the status of a candidate country (Bosnia and Herzegovina). The introduction highlights the importance of transboundary issues in the domain of environmental protection and lays out the methodological remarks. The first part of the article is dedicated to the most significant international agreements of global, (sub)regional, and bilateral character on the basis of which these four countries have an obligation (and the right) to cooperate. In the second part of the article, we provide an overview of the most significant norms of domestic law in the domain of environmental protection (basic laws), which are related to transboundary issues and the obligation of cooperation among countries. The goal of the article is to establish the existence of the obligations of countries to cooperate in the domain of environmental protection. We consider the thesis that the obligation of cooperation among countries in solving transboundary issues is clearly recognized in the relevant international agreements and the character of that obligation should be interpreted in the context of specific rights and obligations of signatory states for each international agreement in its own right. The obligations (and rights) of cooperation are also prescribed in the domestic legislatures of all four countries and the differences could be interpreted on the basis of specific circumstances within each of them.

Addressing Climate Change through International Human Rights Law: From (Extra)Territoriality to Common Concern of Humankind

AbstractInternational human rights law (IHRL) offers potential responses to the consequences of climate change. However, the focus of IHRL on territorial jurisdiction and the causation-based allocation of obligations does not match the global nature of climate change impacts and their indirect causation. The primary aim of this article is to respond to the jurisdictional challenge of IHRL in the context of climate change, including its indirect, slow-onset consequences such as climate change migration. It does so by suggesting a departure from (extra)territoriality and an embrace of global international cooperation obligations in IHRL. The notion of common concern of humankind (CCH) in international environmental law offers conceptual inspiration for the manner in which burden sharing between states may facilitate international cooperation in response to global problems. Such a reconfiguration of the jurisdictional tenets of IHRL is central to enabling a meaningful human rights response to the harmful consequences of climate change.

Zasada współdziałania w pomocy społecznej

This study discusses the nature of the principle of cooperation and its specificity as part of social assistance, which materializes in the obligation of cooperation of people and families, who are recipients of social assistance in solving their difficult life situation. The aim of the article is also to demonstrate the direct relationship between the principle of cooperation and the increase in efficiency, maximization of effectiveness and improvement in the quality of tasks performed by organizational units of social assistance.

Naruszenie obowiązku współpracy z organem nadzorczym w sprawach z zakresu ochrony danych osobowych jako podstawa do nałożenia administracyjnej kary pieniężnej

Przedmiot badań: Niniejsze opracowanie poświęcone zostało analizie obowiązku prawnego współpracy podmiotów zobowiązanych do stosowania tzw. ogólnego rozporządzenia o ochronie danych osobowych (znanego szerzej jako RODO) z organem nadzorczym, którym w Polsce jest Prezes Urzędu Ochrony Danych Osobowych, oraz konsekwencjom jego naruszenia. Przedmio­tem swoich dociekań autorka artykułu uczyniła normy prawa ochrony danych osobowych oraz praktykę ich stosowania.
 Cel badawczy: Podstawowym celem niniejszego artykułu jest ustalenie i ocena czy rozwiązania prawne przyjęte w art. 31 RODO są właściwe i wystarczające z punktu widzenia zapewnienia sprawnej realizacji zadań powierzonych organom nadzorczym odpowiedzialnym za monitorowa­nie stosowania przepisów o ochronie danych osobowych. 1
 Metoda badawcza: Podstawową, zastosowaną w przypadku niniejszego opracowania metodą badawczą jest analiza materiału normatywnego i poglądów piśmiennictwa. Ponadto, w oparciu o rozstrzygnięcia Prezesa Urzędu Ochrony Danych Osobowych analizie poddano stosowanie pra­wa ochrony danych osobowych we wskazanym powyżej zakresie.
 Wyniki: Obowiązek współpracy z organem nadzorczym, wyrażony wprost po raz pierwszy na gruncie przepisów tzw. ogólnego rozporządzenia o ochronie danych, jest ważnym instrumen­tem zapewniającym niezakłóconą realizację kompetencji przyznanych organowi nadzorczemu. W tym kontekście jest on jednym z elementów składających się na fundament europejskiej re­formy prawa ochrony danych osobowych, jakim jest wzmocnienie pozycji organu nadzorczego w relacji z administratorami, podmiotami przetwarzającymi – oraz gdy ma to zastosowanie – ich przedstawicielami. Wprowadzenie możliwości zastosowania sankcji finansowej jako konsekwen­cji naruszenia art. 31 RODO zapewnia możliwość urzeczywistnienia tego celu i pozwala na realne dyscyplinowanie podmiotów zobowiązanych do stosowania przepisów ogólnego rozporządzenia – zarówno w wymiarze indywidualno-, jak i ogólnoprewencyjnym, tj. zarówno w stosunku do samego podmiotu ukaranego, jak i do przyszłych adresatów żądań kierowanych przez organ. Jak pokazuje ponad 3-letnia praktyka stosowania przepisów ogólnego rozporządzenia, przyjęcie przez prawodawcę europejskiego takiego rozwiązania okazało się konieczne. Możliwość nałoże­nia administracyjnej kary pieniężnej, w przypadku naruszenia obowiązku współpracy z organem nadzorczym, może się okazać jednym z niewielu, a czasem wręcz jedynym narzędziem, po który organ będzie mógł sięgnąć, dążąc do niezakłóconej i terminowej realizacji powierzonych mu za­dań, w tym przede wszystkim monitorowania i egzekwowania stosowania ogólnego rozporządze­nia. Tym samym norma ta w sposób pośredni wpływa również na realizację praw osób, których dane dotyczą. Z drugiej strony, zastosowana na gruncie art. 31 RODO konstrukcja prawna, z którą wiąże się konieczność odwołania do innych przepisów ogólnego rozporządzenia określających kompetencje organu, chroni te podmioty przed jej ewentualnym nadużywaniem i ma istotny wy­miar gwarancyjny.

The Relevance of the Human Right to Science for the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: A New Legally Binding Instrument to Support Co-Production of Ocean Knowledge across Scales

This chapter develops the argument that the priority in the ongoing negotiations of a new international legally binding instrument (ILBI) on marine biodiversity of areas beyond national jurisdiction (BBNJ) should be framing clear international cooperation obligations on the co-production of ocean knowledge, in order to support transformative conservation and sustainable use of BBNJ.

JCOERE Judicial Cooperation Supporting Economic Recovery in Europe Report 2: Report on Judicial Cooperation and European Harmonisation and Integration in Preventive Restructuring

The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the European Union’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The European Commission’s strategy is described in the Commission Recommendation 2014/135/EU on a new approach to business failure. The first aspect concerns the co-operation obligations that have been imposed on all domestic Member State courts and judiciary under the European Insolvency Regulation (Recast) 2015/848 (EIR Recast). The second concerns the implementation, subsequent to the Preventive Restructuring Directive 2019/1023, of a preventive restructuring framework in the domestic law of all Member States. The second JCOERE Report analyses the co-operation obligations arising from the EIR Recast, which are imposed on courts and practitioners in EU Member States to co-operate in cross-border insolvency and restructuring matters. The Report also undertakes a benchmarking of judicial utilization and awareness of best practice guidelines on co-operation that have been adopted by European and international organizations. This was achieved through engagement with judicial networks during a number of interactive workshops and through the distribution of a judicial survey to three focus groups comprised of members of the judiciary. This, together with JCOERE Report 1, has contributed to answering the overall project research question, which asks: Based on existing experience with restructuring (e.g. Ireland), will obstacles to court co-operation arise from substantive rules, which are particular to preventive restructuring. Will some of these obstacles to court co-operation be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules? JCOERE Project Report 2 reflects the goals of Work package 3 of the Project and accordingly focusses on the courts, including judicial and administrative authorities, charged with approving and implementing restructuring plans and to which the co-operation obligations are addressed. The second Report considers the application of best practices for co-operation of cross-border preventive restructuring cases, judicial awareness of existing obligations and guidelines and judicial practice in this area. Report 2 also considers broader questions, such as differences in judicial culture across the EU Member States, how this impacts mutual trust and effective cooperation, and how the obligations and broader initiatives concerning judicial co-operation are fundamental to the question of European integration and harmonization. The research in Report 2 also undertakes a comparative analysis of judicial co-operation in another federalized jurisdiction, undertaking a comparison between the European Union and the United States. The JCOERE Project was led by a team at University College Cork School of Law in collaboration with a team at the University of Florence, Titu Maiorescu University in Romania and INSOL Europe. The content of this document represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Disciplining Member States: EU Loyalty in External Relations

AbstractThis Article argues that the cooperation obligations of the Member States under EU law are best understood as forming part of an overall duty of EU loyalty and elaborates on the consequences of framing it in this way. EU loyalty legally requires Member States to make the common EU interest their own. The Article further demonstrates that EU loyalty is more relevant and more stringently applied in EU external relations than within the EU legal order. Loyalty obligations of the Member States reach into the future, extend to hypothetical situations, and are at a comparatively high level of abstraction aimed to protect the Union's ability to act effectively on the international plane. This limits Member States’ margin of manoeuvre, including when they take unilateral external action within the realm of their retained national competences. The Article explains that this may be functionally justified by the high stakes of non-concerted external action. However, and in particular with the EU's increased external powers and the ever-growing relevance of international cooperation, the stringent application of cooperation requirements should be (better) explicated and justified.

JCOERE Judicial Cooperation Supporting Economic Recovery in Europe Report 1: Identifying Substantive Rules in Preventive Restructuring Frameworks Including the Preventive Restructuring Directive which May Be Incompatible with Judicial Cooperation Obligations

The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the EU’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The Commission’s strategy is described in the Recommendation setting out A New Approach to Business Failure. The first aspect concerns the implementation of co-operation obligations that have been imposed on all EU domestic courts and judiciary under the EIR Recast. The second concerns the introduction through the Preventive Restructuring Directive (PRD) of a preventive restructuring framework in the domestic insolvency laws of all Member States. This first JCOERE Report examines these initial substantive and procedural aspects arising from the preventive restructuring frameworks. This, together with JCOERE Report 2, will contribute to answering the overall project research question, which asks: Based on existing experience with restructuring (e.g. Ireland), if obstacles to court co-operation will arise from substantive rules, which are particular to preventive restructuring. If some of these obstacles will be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules. JCOERE project Report 1 (reflecting the goals of Workpackage 2 of the Project) will accordingly concentrate on the nature of substantive and procedural aspects that may arise in complex preventive restructuring or rescue regimes as envisaged by the PRD. The Report also focuses on identifying substantive doctrinal and procedural restructuring rules relevant to court-to-court, and to court-to-practitioner co-operation obligations described in the EIR Recast Regulation 2015/848. The Report includes an analysis of pre-existing systems, such as the Irish Examinership process, the French sauvegarde, and the Spanish and Austrian reorganisation and restructuring procedures. In addition, the approaches of other jurisdictions included in the Project Consortium, namely Italy and Romania, will be discussed. In view of the anecdotal evidence of its influence on the drafting of the PRD, and given its popularity of a restructuring destination, the UK is also considered as a benchmarking exercise. The comparative analysis was extended to other jurisdictions, for example the Netherlands, because of its timely and pre-emptive response to the PRD, and Germany, Poland and Denmark. The JCOERE Project was conducted by a team at the University College Cork in collaboration with teams at the University of Florence, Titu Maiorescu University in Romania, and INSOL Europe. The content of this document represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations From European Academics

On 17 May 2019 the new Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market was officially published (DSM Directive). Article 17 (ex-Article 13) is one of its most controversial provisions. Article 17 tasks the Commission with organizing stakeholder dialogues to ensure uniform application of the obligation of cooperation between online content-sharing service providers (OCSSPs) and right-holders, and to establish best practices with regard to appropriate industry standards of professional diligence. In the discussion on best practices, the provision adds, “special account shall be taken, among other things, of the need to balance fundamental rights and of the use of exceptions and limitations.” This document offers recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive – namely in its paragraphs (7) and (10) – and should be read in the context of the stakeholder dialogue mentioned in paragraph (10).

La prohibición del retorno a la privación socioeconómica: la aplicación del principio de non-refoulement a partir del Pacto Internacional de Derechos Económicos, Sociales y Culturales

El presente artículo se propone discutir si es posible una protección de los derechos económicos, sociales y culturales aplicando el principio de no devolución directamente partir del Pacto Internacional sobre Derechos Económicos, Sociales y Culturales (PIDESC). Para ello, se se analizó la formación de la obligación de no devolución como norma general de derechos humanos a a partir de los mecanismos regionales de protección de tales derechos y las características de esa norma. A continuación, se evaluará si una obligación de no devolución en estos mismos términos puede ser derivada del PIDESC, considerando la relación entre los derechos civiles y políticos y derechos económicos, sociales y culturales, y las obligaciones de cooperación y de realización inmediata de los derechos contenidos en el Pacto.

Lessons from the Al-Bashir Debacle: Four Issues for ICJ Clarification

At its thirtieth ordinary session, the AU decided that the United Nations General Assembly (UNGA) be asked to seek an advisory opinion from the International Court of Justice (ICJ) on the question of immunity of head of states and other senior officials, in relation to articles 27 and 98 of the Rome Statute of the International Criminal Court 1998 (Rome Statute) and states parties’ obligations under international law. The issue of immunity in the context of state cooperation obligations under the International Criminal Court (ICC) legal regime lies at the heart of the Al-Bashir case, and is a contentious issue that has contributed to the deteriorating relationship between the ICC and the AU. Against the backdrop of the Al- Bashir case and the key issues arising in the case warranting clarification that we identify in this article − the meaning of article 98(1) in the context of head of state immunity, solving potential conflicting treaty obligations to (not) cooperate, waiver of head of state immunity by the UNSC, and hierarchy of sources of international law on the relevant issues − we contend that seeking clarification from the ICJ is indeed a more advantageous and appropriate way forward for African states to pursue than the proposed collective withdrawal from the ICC. To this effect, we also argue for the unsuitability of collective withdrawal as a solution to the AU/African states’ concerns around ICC prosecution.

A study on a construction contractor' cooperation obligations in the construction contract - focusing on a distinction criteria between responsibility and obligation -

A study on a construction contractor' cooperation obligations in the construction contract - focusing on a distinction criteria between responsibility and obligation -

Implications of Stripping Immunities of Heads of States on State Cooperation and the Effectiveness of Trial

The development of international criminal law in the last seven decades has seen a gradual erosion of the integrity of immunities for heads of states. The journey from Nuremberg to The Hague has resulted in a permanent international criminal court. Article 27(2) of the Rome Statute of the International Criminal Court (the Rome Statute) disregards immunities as an effective bar to the jurisdiction of the International Criminal Court (ICC). Heads of states have been stripped of their ‘invisibility cloak’ from international criminal prosecutions. The Rome Statute places its reliance on the situation state’s authorities to cooperate with the ICC in its investigation and prosecution of crimes. A special tension is noticeable in circumstances where an incumbent head of state is accused at ICC while his or her state is placed under the general cooperation obligation. This tension is clearly manifest in the two criminal processes against Uhuru Kenyatta and Al Bashir. Bearing in mind the significant political muscle a sitting head of state wields in their state, it is quite likely that their state’s authorities will be very reluctant to discharge their cooperation obligations. The prosecution of sitting heads of states remains a challenge. Is it time to rethink the structure of the ICC or the implementation of the Statute?

Unravelling Cooperation: The Role and Limits of Cooperation in the Governance of International Watercourses

Fresh water is one of the most fundamental natural resources on the planet for human beings as well as ecosystems more generally. This thesis explores ongoing efforts in international law to govern international watercourse systems more effectively. These efforts have been given recent impetus by the long-awaited entry into force in August 2014 of the first global, comprehensive treaty governing international watercourses – the 1997 United Nations Watercourses Convention (UNWC). The UNWC largely reflects customary international law and given that the UNWC still only has thirty-five State parties, custom continues to play an important role in the governance of many major international watercourses.This thesis focuses on the central notion of cooperation in the field of customary international watercourses law. It first highlights the prominence of the vague, multi-layered and contested concept of cooperation and attempts to unpack it. In doing so, it identifies four distinct manifestations of cooperation and reveals the special emphasis the literature has placed on the fourth manifestation: specific procedural obligations of cooperation.This thesis ultimately applies the assertions made in the literature about the binding and effective nature of customary rules of cooperation to a current case study: a dispute between Ethiopia and Egypt over the construction of the Grand Ethiopian Renaissance Dam on the Nile River. Through this case study, this thesis posits that the specific obligations of cooperation identified (notably notification and consultation) sit uneasily in customary international law. Lingering uncertainty about the content of such obligations, in both the literature and by relevant States themselves, highlights the importance of codifying and institutionalising rules of cooperation, so crucial to watercourse management, in order to improve their overall effectiveness.

Towards Improved Regional Co-operation over Water Uses in Central Asia: The Case of Hydroelectric Energy and Inland Fisheries

This paper analyzes one of the key factors for understanding the region of Central Asia: its distinctive relationship to water resources and how states in the region co-operate—or should do so—in order to achieve better management of this valuable resource. Section I introduces the general legal context and, after the presentation of factual data, examines the management of water resources in the region from the viewpoint of the obligation of co-operation established under general international law, including the realization of the right of access to water and sanitation by all citizens. Subsequently, we analyze how and to what extent current international co-operation tools might contribute to solving existing challenges. To this end, we explore both co-operation in the generation and distribution of hydroelectric power in the region, and regional co-operation in the management, conservation, and sustainable development of the inland fisheries of Central Asia.

The Implementation of FATCA into German Law: Current Draft Decree-Law and Remaining Uncertainties

In the U.S., FATCA comes into effect on July 1, 2014. The aim of FATCA is to counter tax evasion or avoidance in the U.S. through foreign financial institutions. FATCA stipulates a compulsory withholding tax that could only be avoided by fulfillment of specific, broad obligations of cooperation of the foreign financial institutions. For the purpose of the implementation of these obligations into national law, the German Ministry of Finance took preparatory actions over the past two years which lead to a respective draft decree-law, announced on March 6, 2014. The final decree is intended to provide a basis for the implementation of the obligations provided by the German/U.S. Intergovernmental Agreement concluded on May 31, 2013. Even though financial institutions were supposed to register with the IRS until April 25, 2014 significant questions remain as to the scope of the IGA and the German decree that must be clarified first in order to secure legal certainty and not to risk another delay in the implementation process. This article provides an overview of the national FATCA implementation process and points out particular uncertainties that financial institutions still face which need to be addressed promptly by the German authorities before FATCA could become an efficient tool to combat tax evasion or avoidance.

Grenzüberschreitende Umweltrisiken und internationale Konsultations- und Kooperationspflichten

Many nuclear power plants are located near international borders. For several years, the construction of a new nuclear power plant near the border with Belarus has been discussed in Lithuania. Based on a retrospective on the discussions about the construction of the Temelin nuclear power plant in the Czech Republic, near the border with Austria, this article considers the question of which cooperation obligations are incumbent on the installing States with regard to the neighboring country. Here, the text first addresses the question whether the establishment of nuclear power plants near international borders is permissible under international law at all. While there is a lack of state practice, which would be necessary for the development of a rule of customary international law rule to this effect, the principle of state sovereignty, which is laid down in the Charter of the United Nations, could preclude the construction of nuclear power plants near the border because the establishment of the power plant would require the neighboring state to take precautionary measures for potential accidents in the power plant across the border.An intrusion into the sovereignty of the neighboring state, which is incompatible with international law, can already exist if a serious danger for the neighboring state is created, even if this danger has not (yet) been turned into a concrete damage. Due to the serious extent of the potential damages, the normal operation of a nuclear power plant already amounts to an ultra-hazardous activity, which can lead to a liability which requires neither the illegality of the damaging act, nor a culpable action on the part of the causing state.The current customary international law already gives the neighboring State a right to be consulted by the constructing State. On the basis of consultations between the Czech Republic and Austria, it will be shown which requirements such consultations must meet. In addition, Lithuania’s obligations under the Espoo Convention will be touched upon shortly.

The UN Watercourses Convention: the éminence grise behind cooperation on transboundary water resources

The indisputable accomplishment of the UN Watercourses Convention (UNWC) is the promotion of general principles of international water law at the universal level. For states sharing freshwater resources, cooperation is indispensable for achieving equitable and reasonable utilization, preventing significant harm and protecting shared ecosystems. The UNWC highlights this importance through the comprehensive codification of cooperation obligations and explicit recognition of the duty to cooperate as one of the general principles of international water law. This article traces the genesis of this recognition and highlights the convention's invaluable contribution in promoting international cooperation in the management of transboundary water resources.