The Subjects of Public International Law in a Globalized World
Today we are witnessing a fundamental shift in Public International Law (PIL) in which the number of actors increases dramatically and in which communication means power. The matrix of PIL is undergoing a major change. This change is not abrupt but has to be seen in the context of the shift away from the Westphalian model of PIL since 1945. Also, globalization is not a new phenomenon, although the current era of globalization, which was made possible due to the fall of the iron curtain and recent technological developments, raises the question how to describe the emerging international legal community in terms of international legal theory. As the importance of the role of the state as an actor of international law is reduced (albeit not to a degree that the state would lose its de facto primacy among the subjects of international law), other actors are gaining ground, in particular international organizations, transnational corporations, NGOs and individuals. Today the latter not only have rights under Public International Law but are also involved in the creation of new rules of international law.
Human Rights Guarantees during States of Emergency: The European Convention on Human Rights
As is the case with other international human rights treaties, the European Convention on Human Rights (ECHR) offers states parties to the convention possibilities to limit the exercise of human rights in times of crisis. The margin of appreciation doctrine employed by the European Court of Human Rights gives states a lot of leeway in applying the Convention domestically. The question is whether the Convention also allows states to restrict rights guaranteed under the Convention to a degree which would be inconsistent with the spirit of the Convention. To answer the question whether human rights are sufficiently guaranteed under the Convention even in times of emergencies we will first look at general rules concerning the restriction of rights under the Convention. We will then move our investigation to Art. 15 ECHR and look at the conditions set by the norm, its limits as well as at some special cases of emergencies.
Faith, Ethics and Religious Norms in a Globalized Environment: Freedom of Religion as a Challenge to the Regulation of Islamic Finance in Europe
It is often feared that globalization is an equalizer in that it dissolves the differences between cultures, including legal cultures. At the same time we can see a counter-movement which places more emphasis on culturally or religiously based rules. A key example of this is the emergence of Islamic Finance. This trend has not only been fueled by the renewed interest in Islam since 9/11, but also due to the shortcomings of traditional financial concepts which have been highlighted dramatically in the global financial crisis. While originating in the Middle East, interest in Islamic finance is now so widespread that seminars on Islamic finance in Western financial centers are fully booked long in advance. International law firms open more and more new offices in the Middle East and, while not necessarily having entered the mainstream, in a sense Islamic finance has gained its place in the world of finance and has therefore become a concern not only for bankers but also for lawyers advising clients on financial services. In this presentation, we will first look at the Quranic sources for the need for Islamic finance before seeing how Islamic finance operates and which financial instruments have been developed under sharia law. We will see how sharia rules impact the financial industry and how they have gained a role among financial products offered around the world before turning our attention to the challenge posed by these financial instruments to regulators unfamiliar with Islamic law. We will look at how religious freedom limits regulatory possibilities. At the center of the investigation, though, will be the question as to whether Islamic finance products live up to the promises associated with them and which consequences this has for regulators, in particular those in Non-Muslim countries.
Turning Religious Values into Law Through the Language of Human Rights: Legal Ethics and the Right to Life Under the European Convention on Human Rights
In a globalized world in which different cultures and religions intermingle and live in close proximity to one another, there are hardly any truly mono-religious states any more. At the same time mainstream politics has become significantly secularized in most of Europe. This has implications for the way the role of religiously motivated values are perceived in the context of making and interpreting legal rules. Seen from a specifically Catholic perspective, this article investigates whether it is morally licit to import (religiously motivated moral) values into law. Looking at the moral fundament of the European Convention of Human Rights and at the issue of the right to life of unborn children, the relationship between justice and faith is investigated.
In the last few years, it has been recognized more and more that human rights also play a role in the maritime sector. Human rights violations at sea are easy to overlook because they happen largely out of sight of most of society and they are based often on the structural power imbalances between seafarers or coastal residents and ship operators or far-away flag states. This article reveals some of the relationships between different actors and the potential for human rights violations in the maritime context. The article highlights the role and limitations of international law in this context. It will also be shown how different state and non-state actors, including consumers, can contribute to strengthening the protection of human rights at sea.
Sanctions for Attorney Misconduct in Relation to a Client Under Lithuanian and German Law
Legal ethics is important for the daily work of attorneys; yet, it hardly receives enough attention in the training of lawyers. This article seeks to show how legal ethics matters and which consequences seemingly small ethics violations can have for attorneys. One key aspect of the client-attorney relationship is the trust which is placed in the attorney by the client. Both Germany and Lithuania prohibit that attorneys represent both parties in a legal dispute, a prohibition which can be surprisingly far-reaching. In this article the authors, both of whom are practicing attorneys, look at the differences and similarities between the legal frameworks in Lithuania and Germany as well as the impact the globalization and Europeanization of legal ethics has had on the domestic laws in their respective jurisdictions. Particular attention is given to the sanctions which can be imposed on attorneys for misconduct in the form of representation which betrays the trust of a client and which is therefore specifically prohibited by the law. Among other issues, the distinction between professional sanctions and punishments under criminal law will be dealt with, as well as the conditions under which attorneys in either jurisdiction are barred from accepting a specific case to begin with.
Freedom of expression is one of the most fundamental rights in a democratic society. In fact, the freedom to express one’s opinion and to impart, as well as to receive, information, is essential for the participation in the democratic process. The ability to make decisions as a citizen requires access to information; the participation in the life of the society requires the ability to express one’s opinions. It is imperative that in a democratic society, as it is envisaged by the European Convention on Human Rights (ECHR), everybody is able to express their views, regardless as to whether these views correspond to the views of those who are in power. This ability is one of the key differences between democracy anddictatorship. In particular in the nation-states of Eastern Europe, which have only known freedom for a bit less than a quarter of a century, the growth of democratic structures is inextricably linked to the ability to exercise this right. But while human rights in principle pit the citizen against the State, the citizen who serves the State in a professional function might also wish to express opinions that go against the view of those who are entrusted with leading the State. This is particularly the case when it comes to members of the armed forces. The jurisprudence of the Convention organs with regard to the right of public officials and other State agents to express their opinion freely is not as coherent as it is with regard to other questions concerning the ECHR. In a case decided in late 2013, the European Court of Human Rights dealt with this question with regard to Lithuania. In this article, the authors look at the question of how far the State can restrict the freedom of expression of members of the armed forces under the European Convention on Human Rights.
In many jurisdictions middle- and low-income individuals obtain only a relatively modest share of lawyers’ services. In a society ruled by law, every person should be able to expect key principles of justice to apply. Among the most important dimensions of a right to a fair trial is the right to equal access to an attorney. After all, the attorney is not merely a commercial actor but also represents the legal system. Access to an attorney is a key step in providing justice in practice. Many states have developed programs of legal aid which aim at providing those who are in need of legal assistance but cannot afford to pay for legal services with a way to receive legal services. Scientific literature distinguishes various forms and instruments of legal aid: the court appointment of lawyers, free or low cost legal aid provided by public agencies and charitable and fraternal organizations, sometimes mixed with legal expenses insurance, contingency fee and the free services of lawyers who are serving probono publico. From the perspective of practicing attorneys, this article presents and compares existing systems of legal assistance in Lithuania and Germany, and their availability and effectiveness, in order to answer the question whether the social responsibility of attorneys and access to justice is obtained.