Search results for "Principle of legality"
showing 7 items of 27 documents
A normative ‘due process’ in the creation of States through secession
2006
The choice and/or the balancing between effectivess and legality in the creation of States is, today, one of the most hotly debated issues in the international legal scholarship. Should a state-like entity formed in breach of the peremptory norm prohibiting the use of force or of the principle of self-determination (not) be considered as a State for the purposes of international law? The answer differs according to what theoretical premises are adopted. For those who believe that the State is a social person, and its creation basically a historical occurrence, the law cannot cancel its very existence. On the other hand, if State-creation is also a matter of law, one might agree that “[a]n a…
On the Absence of Direct Effect of the WTO Dispute Settlement Body's Decisions in the EU Legal Order
2012
This chapter talks about the Absence of Direct Effect of the WTO Dispute Settlement Body's Decisions in the EU Legal Order. It covers five main sections: (1) The Domestic Validity and Rank of Decision (2) Their Internal Effects (3) The 'Scope for Manoeuvre' Argument: An Assessment from the Perspective of the WTO Legal System (4) The 'Scope for Manoeuvre' Argument: An Assessment from the Perspective of the EU Legal System and (5) The Pragmatic Role Played by Direct Effect in the Protection of the Autonomy of the EU Legal Order and Its Costs. According to established case law, while the binding character of international agreements is sufficient to use WTO law as a standard for reviewing the …
‘What’s the Plan?’: On Interpretation and Meta-interpretation in Scott Shapiro’s Legality
2012
This chapter seeks to explain and evaluate Shapiro’s theory of legal interpretation, as it is outlined in his recent book ‘Legality’. More specifically, in the following I will try to provide (a) a reconstruction of Shapiro’s theory of legal interpretation, as it is developed in ‘Legality’; (b) an assessment of this theory of interpretation on its own terms (i.e. its internal coherence, its overall persuasiveness); and (c) an evaluation of the compatibility of this theory of legal interpretation with the general project of ‘law as plan’.
Indulto y Poder Judicial: ¿Un instrumento para la realización de la Justicia?
2017
El indulto no es un vestigio histórico. su reconocimiento en la totalidad de los textos constitucionales de nuestra historia, advierte la existencia de una necesidad que es satisfecha por el indulto, con independencia del momento en el que se haya aplicado. el indulto ex- presa el desajuste entre la norma penal y la justicia, que solo puede tener su remedio con el otorgamiento de la gracia. Pero la admisibilidad del indulto exige el pleno so- metimiento a la ley y al principio de legalidad, desde un ejercicio restrictivo y excepcional, por tratarse de una potestad extraordinaria, pues determina una alteración de los principios constitucionales. y sólo en la medida que sea el Poder Judicial …
The global flood of COVID-19 contact tracing apps: sailing with human rights and data protection standards against the wind of mass surveillance
2021
Research background: Countries all around the world are rapidly introducing contact tracing apps and other surveillance technologies to tackle the spread of COVID-19 raising serious concerns about human rights and democratic principles. Purpose of the article: The article aims to analyse how human rights and data protection law regulate the COVID-19 contact tracing apps and reveal the biggest challenges that countries face in applying the essential requirements. Methods: The article will analyse the legal framework and compare many guidance documents issued by the international organisations, including the Council of Europe, the OECD and many EU institutions on the data protection requireme…
State Sovereignty: Balancing Effectiveness and Legality/Legitimacy
2018
This chapter aims to examine one of the most interesting topics in the contemporary internationalist debate, namely the crisis of effectiveness as the ultimate or sufficient criterion for achieving statehood and territorial sovereignty. Since the 1970s the perception that international law can no longer accept social reality as it is but promotes and imposes standards of justice and common values has become increasingly widespread. More recently, the ensuing discussion between realists and legalists emerged as one of the central topics addressed within the framework of the advisory procedure concerning Kosovo’s declaration of independence. By discussing and critically appraising the normati…
Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War
2017
The legality of self-defence against non-state actors is currently one of the most contested issues of the jus contra bellum. How should we interpret state practice – has it already given rise, in law, to a broader concept of self-defence, or is the traditional state centred view still good law? Under which specific requirements should self-defence against non-state actors, if at all, be regarded as lawful and how can an abuse of an extended right to self-defence be prevented? The “Impulses from the Max Planck Trialogues on the Law of Peace and War” consist of short essays dealing with these questions. The essays are grouped in four categories: 1) restrictivist positions upholding a state-c…