Academic literature on the topic 'Conflicts of obligations'
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Journal articles on the topic "Conflicts of obligations":
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Pawłowska, Izabela. "W obliczu konfliktu interesów. Nowelizacja Kodeksu Etyki Radców Prawnych." Radca Prawny, no. 3 (36) (December 28, 2023): 125–36. http://dx.doi.org/10.4467/23921943rp.23.029.19067.
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Facing a conflict of interest. Amendment to the Code of Ethics for Attorneys-at-law The subject of this publication is the issue of conflict of interest in the profession of an attorney-at-law. The work analyzes the conflict of interests in the face of changes made in the wording of the Code of Ethics for Attorneys-at-law and the Regulations on the Practice of the Profession. It is examined whether changes in the scope of compli-ance with the obligation to avoid conflicts of interest are revolutionary or orderly in nature, and attention is paid to the obligations of attorney-at-law resulting from the obligation to avoid conflicts of interest.
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Florczak-Wątor, Monika. "The Constitutional Obligation of the State to Protect the Weaker Party in a Horizontal Relationship." European Studies 6, no. 1 (December 1, 2019): 237–53. http://dx.doi.org/10.2478/eustu-2022-0039.
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Summary The aim of this paper is to present how the State’s obligation to protect the weaker party in a horizontal relationship can be reconstructed from the provisions of the constitution. The paper outlines the concept of the protective obligations of the State as well as the peculiarities of the horizontal relationships. It deals with normative grounds for the general obligation to protect an individual by the State and for the specific protective obligations with respect to particular rights and freedoms. The analysis is primarily based on the constitutional provisions of Visegrad Group countries and includes the provisions of the European Convention on Human Rights. The paper concludes that conflicts of the State’s protective obligations resulting from conflicts of the rights and freedoms of individuals should be resolved in the same way in which the theory of law recommends resolving conflicts of constitutional principles.
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Strauch, Paul, and Beatrice Walton. "Jus ex bello and international humanitarian law: States’ obligations when withdrawing from armed conflict." International Review of the Red Cross 102, no. 914 (August 2020): 923–58. http://dx.doi.org/10.1017/s1816383121000813.
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AbstractThis article considers the international legal obligations relevant to States when withdrawing from situations of armed conflict. While a growing literature has focused on precisely when armed conflicts come to a legal end, as well as obligations triggered by the cessation of active hostilities, comparatively little attention has been paid to the legal implications of withdrawals from armed conflict and the contours of the obligations relevant to States in doing so. Following in the wake of just war scholarship endeavouring to distil jus ex bello principles, this article examines States’ obligations when ending their participation in armed conflicts from the perspective of international humanitarian law (IHL). It shows that while it is generally understood that IHL ceases to apply at the end of armed conflict, this is in reality a significant simplification; a number of obligations actually endure. Such rules act as exceptions to the general temporal scope of IHL and continue to govern withdrawing States, in effect straddling the in bello and post bellum phases of armed conflict. The article then develops three key end-of-participation obligations: obligations governing detention and transfer of persons, obligations imposed by Article 1 common to the four Geneva Conventions, and obligations relating to accountability and the consequences of conflict.
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van Benthem, Tsvetelina. "The redirection of attacks by defending forces." International Review of the Red Cross 102, no. 914 (August 2020): 875–92. http://dx.doi.org/10.1017/s1816383121000679.
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AbstractThis article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.
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Degeling, Simone, and Jessica Hudson. "Credit Advisers, Consumer Credit and Equitable Fiduciary Obligations." Federal Law Review 47, no. 1 (February 8, 2019): 64–90. http://dx.doi.org/10.1177/0067205x18816235.
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Consumers use financial intermediaries such as brokers and other credit advisers to navigate complex financial markets and to provide guidance on credit products. In 2017 ASIC reported that ‘[b]rokers … are responsible for arranging … half of all home loans in Australia’ (Australian Securities & Investments Commission, Report 516: Review of Mortgage Broker Remuneration (2017) 8 [18]). The National Consumer Credit Protection Act 2009 (Cth) (‘Credit Regime’) regulates the conduct of such advisers including requiring disclosure of fees and some commissions. The Credit Regime also permits conflicts between the interest of the adviser and the client, provided that the adviser has in place ‘adequate arrangements to ensure … [that the client is] … not disadvantaged by any conflict of interest’ and that the conflict does not breach the adviser’s obligation to act ‘efficiently, honestly and fairly’. This article demonstrates that equitable fiduciary obligations also operate to regulate the conduct of the adviser in his or her dealings with the client. Such conflict and other conduct may breach any equitable fiduciary obligation thus exposing the adviser to equitable remedies. Equitable fiduciary obligations may thus be an as yet under-exploited avenue of protection for consumers and a concomitant zone of compliance risk for those subject to the Credit Regime.
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Karin-Frank, Shyli. "When Friendship Conflicts with Moral Obligations." Social Philosophy Today 12 (1996): 303–16. http://dx.doi.org/10.5840/socphiltoday1996123.
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Kopala, Beverly. "Conflicts in nurse educators' role obligations." Journal of Professional Nursing 10, no. 4 (July 1994): 236–43. http://dx.doi.org/10.1016/8755-7223(94)90025-6.
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Hutter, Simone. "Starvation in Armed Conflicts." Journal of International Criminal Justice 17, no. 4 (September 1, 2019): 723–52. http://dx.doi.org/10.1093/jicj/mqz056.
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Abstract Armed conflict can cause food shortages, which continue long after the fighting is over, and increase the chance that a famine may occur. When it occurs during the context of an armed conflict, death resulting from hunger is tolerated by the international community. Yet, the prevention or alleviation of famines, even within environmentally precarious regions, is often within human control. This gives rise to the following questions. Can a state use the outbreak of an armed conflict as an excuse to remain passive while starvation takes its course? Is it justified for a state to allocate most of its resources to its military operations, while claiming to have difficulties to collect sufficient resources to meet its minimum core obligations under international human rights law? This article aims to clarify these complex questions and elaborates on how the framework of human rights law includes provisions to prevent starvation in armed conflicts. With a focus on the right to food, this analysis scrutinizes the human rights-based obligations to respect, protect and fulfil, which impose clear duties on states with respect to famines. As it is generally accepted that international human rights law continues to apply in situations of armed conflict, both human rights law and international humanitarian law apply simultaneously in these scenarios. The analysis thus also examines the complex relationship between obligations under human rights law and humanitarian law and the influence of the former on the assessment of latter. Finally, the article touches upon the scope of obligations held by armed non-state actors.
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DE WET, ERIKA, and JURE VIDMAR. "Conflicts between international paradigms: Hierarchy versus systemic integration." Global Constitutionalism 2, no. 2 (June 28, 2013): 196–217. http://dx.doi.org/10.1017/s2045381713000129.
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AbstractThis article gives an overview of two competing paradigms in the practice of judicial organs for the resolution of norm conflicts, namely the paradigm of a human rights based hierarchy versus the paradigm of systemic integration or conflict avoidance. Judicial practice indicates that norm conflicts typically manifest themselves between human rights obligations on the one hand and other categories of international obligations on the other. Do judicial organs resolve such norm conflicts in a manner that favours human rights obligations? If so, this would support the view in the literature that the international legal order is increasingly operating within a paradigm of hierarchy, with human rights at its apex. The article addresses this question based on the results of a study conducted by 10 authors who have analysed the practice of domestic, regional, supranational and international courts in dealing with norm conflicts between human rights, on the one hand and the other sub-regimes of public international law mentioned above, on the other (de Wet and Vidmar 2011). The article argues that judicial practice reveals no clear or consistent patterns of a human rights based hierarchy in international law can currently be induced from the manner in which courts resolve norm conflicts in international law. Instead, courts avoid resolving norm conflicts within a paradigm of hierarchy and instead remain within a paradigm of systemic integration that is aimed at maximizing the accommodation of competing sub-regimes of public international law.
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Tougas, Marie-Louise. "SOME COMMENTS AND OBSERVATIONS ON THE MONTREUX DOCUMENT." Yearbook of International Humanitarian Law 12 (December 2009): 321–45. http://dx.doi.org/10.1017/s1389135909000129.
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AbstractGrowing concerns that PMSCs were operating in a legal vacuum led to increasing calls for further clarification on the role of such entities in conflict zones and to mounting pressure to develop a regulative framework under international law. In September 2008, 17 States endorsed the Montreux Document, an initiative sponsored by the Swiss government and the ICRC. The Montreux Document is a non-binding document aimed at identifying and reasserting the most relevant international legal obligations that govern the conduct of PMSCs during armed conflicts. It also provides for a set of guidelines on ‘good practices’ for States in regard to the operation of PMSCs in armed conflicts. Although it does not create any legal obligations, and only recalls existing ones, it is the first intergovernmental document to address international obligations in respect to the activities of PMSCs. It can thus be seen as a first step toward the establishment of a better regulative framework of PMSCs' activities in conflict zones. This article provides an overview of the process that led to the endorsement of this document and an analysis of its content. It also addresses some of the questions left unanswered by the Montreux Document.
Dissertations / Theses on the topic "Conflicts of obligations":
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Berggren, Theo. "Norm Conflicts in Public International Law : The Relationship Between Obligations Under the ECHR and Under the UN Charter." Thesis, Uppsala universitet, Juridiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-323239.
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Cornet, Alexis. "Algorithmes et résultats de complexité pour des problèmes de graphes avec contraintes additionnelles." Thesis, Université Clermont Auvergne (2017-2020), 2018. http://www.theses.fr/2018CLFAC034/document.
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Les problèmes de domination (dominant, dominant indépendant, ...) et de couverture (vertex-cover, arbre de Steiner, ...) sont NP-complets. Pour autant, pour la plupart de ces problèmes, il existe toujours une solution constructible en temps polynomial (potentiellement de valeur objective très mauvaise), ou au moins, il est possible de déterminer facilement (en temps polynomial) l'existence ou non d'une solution. Ces problèmes, initialement issus de situations réelles, sont des modélisations simplistes de ces situations. Nous ajoutons donc des contraintes additionnelles modélisant des contraintes pratiques plausibles : les conflits, des paires d'éléments ne pouvant faire simultanément partie d'une solution (modélisant des incompatibilités diverses), la connexité dans un second graphe (les éléments doivent pouvoir communiquer, et le graphe correspondant à ces liens de communication n'est pas forcément le même) et les obligations, des sous-ensembles d'éléments interdépendants devant être ajoutés simultanément à une solution. Notre but ici n'est pas de modéliser un problème réel précis, mais d'étudier la manière dont ces contraintes modifient la complexité des problèmes étudiés. Nous verrons que dans un grand nombre de cas, déterminer l'existence même d'une solution devient difficile, même sans se préoccuper de leur optimisation. Le problème du firefighter modélise des pompiers tentant de contenir un feu se propageant au tour par tour dans un graphe (potentiellement infini). Nous avons étudié ce problème en ajoutant des contraintes sur le déplacement des pompiers (une vitesse de déplacement limitée entre deux tours). Nous verrons que ces contraintes augmentent en général le nombre de pompiers nécessaires mais ne provoquent pas de changements aussi importants que dans les problèmes précédentsDomination problems (dominating set, independant dominating set, ...) as well as covering problems (vertex-cover, Steiner tree, ...) are NP-complete. However, for most of these problems, it is always possible to construct a (eventually bad) solution in polynomial time, or at least it is possible to determine whether a solution exists. Those problems originally came from industry, but are simplified modelizations of the real life problems. We add additional constraints modeling plausible practical constraints : conflicts which are pairs of elements that cannot apear simultaneously in a solution (to modelize various incompatibilities), connexity in a second graph (elements of the solution must be able to communicate, and the communication links are a second graph), and obligations which are subsets of interdependant vertices which must be added simultaneously in a solution.We don't aim to model a specific real-world problem, but to study how these plausible constraints affect the complexity of the studied problems. We will see that, in many cases, even determining the existence of a solution (regardless of its size) become hard. The firefighter problem models firefighters aiming to contain a fire spreading turn by turn in a (eventually infinite) graph. We studied this problem with the addition of deplacement constraints for the firefighters (a limited moving speed between turns). We will see that, most of the time, this constraint increase the number of firefighters necessary to contain the fire, but does not trigger such major change as constraints studied in the others problems
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Aminoff, Elin. "En studie om konflikter i arbetslivet och det systematiska arbetsmiljöarbetets roll som verktyg till förebyggande arbete." Thesis, Linnéuniversitetet, Institutionen för ekonomistyrning och logistik (ELO), 2015. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-41514.
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Abstract The main subject of this essay is conflicts at work and the effect it has on the employee´s health. I can through various reports read that bad health at workplaces is too high and that conflicts are a reason. What can be done to the work environment so it will be better from a psychosocial perspective? Sweden has a regulation that makes the employer responsible to work for an improvement in the work environment; can these regulations be used in purpose to reduce conflicts? My first question concerns the possibility to establish preventive procedures in the workplace systematic work regarding to improve the work environment. My second question is about the obligations of the employer to attempt to reduce conflicts at the workplace and the third question regards the documenting and monitoring of conflicts and the preventing work to reduce them. The purpose of this essay is to clarify how conflict preventive work can be included in the Systematic work environment management. To find answers to my questions I will interpret and analyze the current Swedish law but also international law. Current law and regulations will be supplemented with interviews to obtain information about the employer´s approach to preventive work regarding conflicts. After analyzing the material I come to my conclusion that it´s possible to use current regulations as a tool to reduce conflicts at workplaces and through that also reduce sick leave due to psychological disorders. But there is a need to set up more concrete routines that makes the employer´s obliged to take all measures deemed necessary.
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Nahlawi, Yasmine Khaled. "The responsibility to protect : an examination of host and third-state obligations in preventing and reacting to mass atrocity crimes in light of the Libyan and Syrian conflicts." Thesis, University of Newcastle upon Tyne, 2016. http://hdl.handle.net/10443/3536.
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This thesis examines the responsibility to protect (R2P) doctrine in light of the 2011 Libyan and Syrian conflicts in order to determine host and third-State obligations in the prevention of and the reaction to mass atrocity crimes. This thesis emphasises that R2P is premised in many ways upon existing international norms which it seeks to pull together, repackage, and build upon in order to arrive at a central legal framework for tackling mass atrocity crimes. As such, this thesis discusses R2P’s application in the Libyan and Syrian conflicts in light of both existing international norms as well as an emerging central R2P framework. In terms of host State obligations, a detailed examination of R2P’s role within the Libyan and Syrian conflicts affirms that States universally accepted a binding obligation to protect their own populations from mass atrocity crimes. However, there is no indication – through the various military and non-military measures employed by the international community in response to these conflicts – that States accepted an obligation to react to mass atrocity crimes as part of R2P. Combined with persisting structural limitations within the United Nations Security Council (UNSC), most particularly the permanent members’ right to the veto, it can be seen that R2P has failed to overcome some of the very deficiencies which it was created to address. Moving forward, R2P must either come to impose an obligation upon third-party States to react to mass atrocity situations (and by default, limit the use of the permanent veto), or must identify means by which the international community can circumvent the UNSC when the body is paralysed. This thesis highlights that legal frameworks do exist in support of both of these aims, although they must be further developed and strengthened in order to enhance the enforcement of R2P.
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Müller, Amrie. "The relationship of state obligations under the International Covenant on Economic, Social and Cultural Rights and international humanitarian law : an analysis of health-related issues in non-international armed conflicts." Thesis, University of Nottingham, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.555706.
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The parallel application of international humanitarian law (IHL) and international human rights law (IHRL) to armed conflicts is widely accepted today. Its detailed legal consequences, which will help in understanding its practical effect and potential to enhance the protection of people affected by armed conflicts, remain to be analysed in many areas. This thesis investigates the relationship of state obligations under IHL and the International Covenant on Economic, Social and Cultural Rights (ICESCR), with a special emphasis on health-related issues in non-international armed conflicts. ICJ jurisprudence suggests that the simultaneous application of IHL and IHRL can be structured with the help of the lex specialis maxim. This thesis argues that the function of the lex specialis maxim is relative and highly situation-dependent. When this is recognised, the maxim - alongside other interpretative methods - promises to aid the flexible parallel application of IHL and economic, social and cultural (ESC) rights to non-international armed conflicts. Despite developments in customary IHL applicable to non-international armed conflicts, the distinction between international and non-international armed conflicts remains relevant in IHL. Likewise, questions remain regarding the threshold of application of some IHL rules. These factors will affect the parallel application of IHL and the ICESCR to non-international armed conflicts. The scope of state obligations under the ICESCR in times of armed conflict has received little attention so far. It is argued that this scope is determined by two Articles: the notion to 'take steps' towards the 'progressive realisation' of ESC rights in Article 2(1) ICESCR, and by Article 4 ICESCR, the Covenant's general limitation clause. It is shown that the minimum core approach can be helpful in interpreting both Articles - minimum core rights should be implemented as a matter of highest priority even in times of armed conflict. It is further argued that no derogations are permitted from the right to health and other ESC rights in times of armed conflict, in particular not from their minimum cores. Building on these findings and focusing on health-related issues, the thesis analyses how a relative and context-sensitive lex specialis maxim can assist in easing substantial tensions between elements of the right to health and IHL relating to the targeting of military objectives, in particular so-called 'dual-use' objects. IHL rules on military targeting are found most likely to be given preference in situations of active combat. Nonetheless, the simultaneous application of the right to health will ensure that adverse long-term public health and other socio-economic consequences of NIACs for civilians are not ignored even when hostilities are ongoing and military-target decisions are made. It is also shown that IHL on the protection and care of the wounded and sick and the right to health complement each other well in mitigating the direct and indirect health consequences of armed conflicts, similarly supported by a context-sensitive use of lex specialis. With certain nuances, these findings apply to the relationship between IHL and ESC rights more generally. The operationalisation of this thesis' findings, and of the legal implications of the parallel application of other ESC rights and IHL, requires further efforts. It is concluded that the development of guidelines that assist practitioners in assessing the flexible relationship between IHL and the ICESCR in a given situation are the most functional option in that regard.
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Abegón, Novella Marta. "Los efectos de los conflictos armados en los tratados multilaterales normativos de protección del medio ambiente." Doctoral thesis, Universitat Pompeu Fabra, 2012. http://hdl.handle.net/10803/127351.
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La tesis Los efectos de los conflictos armados en los tratados multilaterales normativos de protección del medio ambiente analiza qué efectos tienen los conflictos armados en los tratados que protegen el interés de la Comunidad internacional en la salvaguarda del medio ambiente, y examina en qué medida éstos continúan aplicándose en tales circunstancias. La primera parte se dedica al estudio de la codificación de las normas internacionales relativas a los efectos de los conflictos armados en los tratados internacionales; la segunda parte examina los tratados internacionales de protección del medio ambiente como tratados multilaterales normativos de protección de los intereses generales de la Comunidad internacional; y, finalmente, la tercera parte analiza la aplicación de las reglas contenidas en el proyecto de artículos de la Comisión de Derecho Internacional sobre los efectos de los conflictos armados en los tratados, aprobado en 2011, a los tratados multilaterales normativos de protección del medio ambiente.The thesis The effects of armed conflicts on multilateral law-making treaties for the protection of the environment analyzes the effects of armed conflicts on treaties that protect the interest of the International community in safeguarding the environment, and examines to what extent they continue to be applied in such circumstances. The first part is devoted to the study of the codification of international rules related to the effects of armed conflicts on treaties; the second part examines the international treaties protecting the environment as a kind of multilateral law-making treaties for the protection of the general interests of the International community; and finally, the third part analyzes the application of the rules contained in the draft articles of the International Law Commission on the effects of armed conflicts on treaties, adopted in 2011, on multilateral law-making treaties for the protection of the environment.
Cette thèse, intitulée Les effets des conflits armés sur les traités multilatéraux normatifs de protection de l'environnement, analyse quels sont les effets des conflits armés sur les traités qui protègent l’intérêt de la Communauté internationale pour la sauvegarde de l'environnement, et examine dans quelle mesure ils continuent à s'appliquer dans ces circonstances. La première partie est consacrée à l'étude de la codification des normes internationales relatives aux effets des conflits armés sur les traités; la deuxième partie examine les traités internationaux de protection de l'environnement en tant que traités multilatéraux normatifs de protection des intérêts généraux de la Communauté internationale; et, finalement, la troisième partie met analyse l'application des règles contenues dans le projet d'articles de la Commission du Droit International sur les effets des conflits armés sur les traités, adopté en 2011, aux traités multilatéraux normatifs de protection de l'environnement.
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Dogar, Adnan Ahmad. "Les conflits régionaux de l'eau : une approche par la négociation." Paris, EHESS, 2011. http://www.theses.fr/2011EHES0119.
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La présente Thèse porte sur le partage des eaux des fleuves internationaux entre pays riverains. Notre objectif a consisté à étudier cette question sous l'angle de la négociation. L'outil de la négociation qui a été retenu s'appuie sur le cadre des jeux non-coopératifs. Bien que les développements de cette Thèse soient d'ordre qualitatif, les différents modèles qui en ont résulté ont été construits à partir d'exemples d'accords qui ont été effectivement signés. Cela nous a conduit à intégrer des caractéristiques propres à ce type de négociation. Dans notre cas, les caractéristiques retenues étaient au nombre de quatre: (1) la présence de contraintes domestiques dont le rôle est particulièrement crucial lorsque les pays sont confrontés à un stress hydrique; (2) le recours à des menaces, en l'occurrence la menace de soutenir un groupe rebelle pour inciter le pays avec lequel on négocie à proposer des offres conséquentes; (3) la présence d'un engagement révocable qui consiste à restreindre l'espace de stratégies du partenaire afin de le contraindre à un accord qui lui est défavorable; et enfin (4) l'intervention d'un médiateur pour garantir la signature d'un accord. Des différents modèles envisagés, il est ressorti clairement qu'un accord peut toujours être atteint, même si parfois les pays doivent supporter un délai, et donc un coût de négociation. Cela tend à confirmer l'idée que les conflits de l'eau peuvent être source de coopération dès lors que leur résolution passe par la négociationThe thesis addresses the issue of water sharing among riparian states. The principle objective of the research was to study the negotiations that took place among these states. The negotiations were based upon non-cooperative game theory. Although much of the work is qualitative, the models developed are based upon the actual agreements that were signed between these states. This allowed us to incorporate proper characteristics to the negotiations. We used four of such characteristics: (1) the presence of domestic constraints where their role is particularly important if countries are facing water stress; (2) the use of threats, especially the threat of supporting a rebel group within the country with which we are negotiating to improve the bargaining position; (3) the presence of a revocable commitment to restrict the strategy space of the partner in order to force an agreement which is unfavorable for her; and finally (4) the intervention of a mediator to secure the signing of an agreement. Different proposed models show clearly that an agreement can always be reached, although sometimes it may take longer period of time and as a result countries may have to bear the cost of negotiations. This makes it clear that water conflicts can be a source of cooperation which can be achieved through negotiation among the riparian states
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Vasalou, Evangelia. "Les conflits d’obligations internationales devant la Cour européenne des droits de l’homme." Electronic Thesis or Diss., Université Paris-Panthéon-Assas, 2024. http://www.theses.fr/2024ASSA0005.
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Ayant comme axe principal la jurisprudence de la Cour EDH, la présente thèse est centrée sur les conflits entre la CEDH et les autres obligations internationales incombant aux États parties. L’approche de la Cour EDH témoigne de la nécessité de cohérence en droit et de l’harmonisation des conflits d’obligations. Visant à harmoniser les éventuelles contrariétés la Cour de Strasbourg ne s’est pas interrogée sur les causes de ces conflits. L’objet de cette thèse consiste ainsi à rechercher s’il y a des règles juridiques aptes à aménager les conflictualités en amont en générant pour les États l’obligation d’élaborer des normes créant des obligations concordantes. En outre, l’étude se fixe pour objectif de systématiser les cas des conflits entre la CEDH et les autres obligations internationales dans les affaires portées devant la Cour EDH, afin de mettre en relief les conditions d’émergence de ces conflits et de s’interroger sur les moyens de leur gestion. Une grande partie de la réflexion va au-delà de la critique de l’efficacité des moyens d’harmonisation employés par la jurisprudence strasbourgeoise pour proposer des solutions permettant d’éviter les conflits. L’analyse de l’applicabilité des moyens de résolution des conflits s’inscrit dans le cadre de la gestion des conflits dans lesquels sont impliquées les obligations issues de la CEDH. Dans ce contexte, la thèse met l’accent sur les moyens de résolution des conflits qui pourraient être appliqués dans le futur, dans l’hypothèse où la Cour EDH reconnaitrait explicitement une situation de conflit entre la CEDH et une autre obligation internationaleThis thesis explores the question of conflicts between the ECHR and other international obligations for State parties by focusing on the case law of the ECtHR. The ECtHR's approach reflects the need for consistency in law and harmonisation of conflicting obligations. Setting the objective of harmonising potential conflicts, the Court of Strasbourg did not raise the question about the causes of those conflicts. This thesis seeks to examine whether there are any legal rules that could prevent conflicts by obliging States to establish norms that createcompatible obligations. In addition, the study aims to systematise conflicts between the ECHR and other international obligations in cases which were lodged with the ECtHR, in order to highlight the conditions of emergence of these conflicts and to examine the means of their coordination. The overarching theme of the study goes beyond the criticism of the effectiveness of the means of harmonisation applied by the case-law of the Court of Strasbourg, proposing solutions for the avoidance of conflicts. The analysis of the applicability of the means of conflict resolution is part of the management of conflicts in which the obligations of the ECHRare involved. In this context, the thesis delves into the means of conflict resolution that could be applied in the future, should the ECtHR explicitly recognise a situation of conflict between the ECHR and another international obligation
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Reydellet, Colin. "Corrélations entre conflits de lois et conflits de juridictions en droit international privé des obligations." Thesis, Lyon, 2018. http://www.theses.fr/2018LYSE3074.
Abstract:
Le droit international privé français tient pour usuel la dissociation entre le conflit de lois et le conflit de juridictions. Cette indépendance entre les deux corps de règles est érigée en principe tant par la doctrine majoritaire que par le droit positif. Selon ce principe, toute forme de corrélation est et doit être réfutée, qu’elle opère au moment de la mise en œuvre des règles de conflit ou de leur construction. En d’autres termes, ce sont ainsi trois hypothèses qui sont dénoncées : celle de l’applicabilité directe de la lex fori en tant que telle, mais également celles de la compétence du forum legis et du parallélisme des règles de conflit, celles-ci conduisant à une applicabilité indirecte de la lex fori. Or, selon la présente étude, le droit international privé des obligations montre qu’un tel principe n’existe pas et qu’il n’est pas nécessairement opportun. En effet, et un tel constat s’impose, tant le mécanisme des lois de police que le jeu de l’autonomie de la volonté suscitent une applicabilité directe de la lex fori. Par ailleurs, la réfutation des modes de corrélation indirecte est inopportune. D’une part, la compétence du forum legis permet de garantir l’effectivité des lois de police, dans la mesure où aucun autre remède ne se révèle suffisant. D’autre part, la spécialisation du droit international privé des obligations et l’emprise du droit de l’Union européenne sur cette discipline génère des règles de compétence et de loi applicable qui présentent un certain parallélisme qui n’est pas uniquement accidentel. La thèse invite ainsi à remettre en question certains dogmes classiques du droit international privé des obligationsFrench private international law holds as usual the dissociation between choice of law and judicial jurisdiction. This independence between the two sets of rules is set up as a principle by both majority doctrine and law. According to this principle, any form of correlation is and must be refuted, whether it occurs at the time of implementation of the conflict rules or the time of their formulation. In other words, three hypotheses are thus denounced: that of the direct applicability of the lex fori as such, but also those of the jurisdiction of the forum legis and the parallelism of the conflict rules, which lead to an indirect applicability of the lex fori. However, according to this study, contracts and torts private international law shows that such a principle does not exist and that it is not necessarily appropriate. Indeed, both the mechanism of overriding mandatory provisions and freedom of choice of law give rise to a direct applicability of the lex fori. Moreover, the refutation of indirect correlation modes is inappropriate. On the one hand, the jurisdiction of forum legis makes it possible to guarantee the effectiveness of overriding mandatory provisions, insofar as no other remedy is sufficient. On the other hand, the specialisation of contracts and torts private international law and the influence of European Union law on this discipline generate rules of judicial jurisdiction rules and applicable law that present a certain parallelism that is not only accidental. The thesis thus invites us to question certain classic dogmas of private international law of obligations
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Minois, Maud. "Recherche sur la qualification en droit international privé des obligations." Thesis, Sorbonne Paris Cité, 2016. http://www.theses.fr/2016USPCB132.
Abstract:
Pendant longtemps, la qualification lege fori a dominé la scène internationale. D'une conception stricte, témoin d'une analyse particulariste du droit international privé, elle a progressivement évolué vers une conception assouplie. Aujourd'hui, les auteurs s'accordent à voir dans la qualification lege fori, une méthode de qualification appropriée. Confrontée au droit des obligations, la qualification lege fori révèle ses faiblesses. Elle est atteinte d'un vice originel qui implique de s'interroger sur son bien-fondé. Même assouplie, la qualification lege fori est incapable de se détacher des concepts du for. Une situation internationale sera donc résolue selon des concepts dictés pour les besoins du droit interne. Ces insuffisances s'observent à l'étude de cas hybrides. Il s'agit d'hypothèses particulièrement délicates à qualifier car elles se situent à la lisière de la matière contractuelle et de la matière délictuelle. La présente étude se propose de rechercher un modèle de qualification qui puisse répondre à la fonction internationale de la règle à appliquer. À côté de la qualification lege fori, il existe une appréhension européenne de la qualification. Celle-ci s'organise autour de l'élaboration de qualifications autonomes, a priori distinctes de la qualification lege fori. La Cour de justice a ainsi opté pour une qualification autonome des notions de matière contractuelle et de matière délictuelle. Confrontée à la qualification lege fori, la qualification autonome révèle sa véritable nature. Sous certains aspects, elle est une forme de qualification lege fori. Sous un autre angle, elle s'en éloigne et peut être analysée comme une véritable qualification internationale. Contrairement à la qualification lege fori, la qualification autonome répond à la fonction internationale de la règle de droit international privé. Elle est donc adaptée aux besoins de la vie internationale. Une fois le bien-fondé de l'approche autonome posée, il était nécessaire de s'interroger sur sa généralisation. En effet, l'adoption d'un ensemble complet de textes en droit international privé européen des obligations a fait émerger un débat sur l'opportunité d'adopter une qualification unitaire des notions communes aux textes de Bruxelles et de Rome. La présente étude se propose de retenir un modèle autonome et moniste de la qualification borné aux seules relations internationalesFor a long time, the lege fori characterisation has dominated the international scene. It has evolved from a strict conception, witness of a particularistic approach of private international law, towards a more flexible conception. Nowadays, authors accept the lege fori characterisation as an appropriate characterisation method. Faced with the law of obligations, the lege fori characterisation shows its weaknesses. It is suffering from an original defect which prompts interrogations on its merits. Even relaxed, the lege fori characterisation cannot be detached from the concepts of the lex fori. An international situation will therefore be resolved according to concepts dictated based on the needs of the law of the forum. Such inadequacies can be observed when studying hybrid cases. Hybrid cases hypotheses are extremely difficult to classify as they stand on the border between matters relating to tort/delict and matters relating to contracts. The present study will search for a characterisation model able to fulfil the international function of the rule to apply. A European understanding of characterisation exists beside the lege fori characterisation. It revolves around the elaboration of autonomous characterisations, in principle distinct from the lege fori characterisation. The European Court of Justice chose an autonomous characterisation for the notions of matter relating to contract and matter relating to tort/delict. Faced with the lege fori characterisation, the autonomous characterisation reveals its true nature. In some respects, it is a type of lege fori characterisation. From another perspective, it diverges from it and can be interpreted as a true international characterisation. Unlike the lege fori characterisation, the autonomous characterisation fulfils the international function of the private international law rule. Therefore, it is suitable to the needs of international affairs. Once the merits of the autonomous approach have been established, it is necessary to consider whether it can be generalized or not. Indeed, the adoption of a complete set of rules in European private international law relating to contractual and non-contractual obligations highlights a debate on the opportunity to adopt a unitary characterisation for the common notions of the Rome and Brussels Conventions and Regulations. The present study suggests to consider an autonomous and monistic model for characterisation but only to the extent international relations are involved
Books on the topic "Conflicts of obligations":
1
Latvala, Johanna. Obligations, loyalties, conflicts: Highly educated women and family life in Nairobi, Kenya. Tampere, Finland: Tampere University Press, 2006.
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Baker, C. Ashford. The ultimate dilemma: Obligation conflicts in wartime. Lanham, MD: University Press of America, 1988.
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Brinton, Henry G. Balancing acts: Obligation, liberation, and contemporary Christian conflicts. Lima, Ohio: CSS Pub. Co., 2006.
4
Brulhart, Vincent. Le choix de la loi applicable, questions choisies: Avec une ébauche de réglementation de l'electio juris et quelques reflexions sur le rattachement des contrats d'assurance. Bern: Stämpfli, 2004.
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Benzenberg, Elke. Die Behandlung ausländischer Eingriffsnormen im internationalen Privatrecht: Eine Studie unter besonderer Berücksichtigung des internationalen Schuldrechts. Jena: Jenaer Wissenschaftliche Verlagsgesellschaft/Sellier, 2008.
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Patrzek, Katrin Ursula Maria. Die vertragsakzessorische Anknüpfung im internationalen Privatrecht: Dargestellt anhand des Deliktsrechts, der Geschäftsführung ohne Auftrag, des Bereicherungsrechts und der culpa in contrahendo. München: VVF, 1992.
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Richard, Rose. Baltic trends: Studies in co-operation, conflict, rights and obligations. Glasgow: University of Strathclyde, Centre for the Study of Public Policy, 1997.
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Verhoeven, Maartje. The Costanzo obligation: The obligations of national administrative authorities in the case of incompatibility between National law and European law. [Cambridge: Intersentia, 2011.
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Dennis, Campbell, and Center for International Legal Studies., eds. Attacking foreign assets. London: Lloyd's of London Press, 1992.
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Popiołek, Wojciech. Wykonanie zobowiązania umownego a prawo miejsca wykonania: Zagadnienia kolizyjnoprawne. Katowice: Uniwersytet Śląski, 1989.
Book chapters on the topic "Conflicts of obligations":
1
Asher, Shellie L. "Conflicts Between Patient Requests and Physician Obligations." In Ethical Problems in Emergency Medicine, 37–46. Chichester, UK: John Wiley & Sons, Ltd, 2012. http://dx.doi.org/10.1002/9781118292150.ch4.
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Broersen, Jan, Mehdi Dastani, and Leendert van der Torre. "Resolving Conflicts between Beliefs, Obligations, Intentions, and Desires." In Lecture Notes in Computer Science, 568–79. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/3-540-44652-4_50.
3
Nolutshungu, S. C. "Non-intervention: Ethical ‘Rules of Disregard’ and Third-World Conflicts." In Rights and Obligations in North-South Relations, 131–58. London: Palgrave Macmillan UK, 1986. http://dx.doi.org/10.1007/978-1-349-07774-8_7.
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Eagan, Sheena M., and Zohar Lederman. "The Physician at War." In The International Library of Bioethics, 93–107. Cham: Springer International Publishing, 2022. http://dx.doi.org/10.1007/978-3-031-01987-6_6.
Abstract:
AbstractWhen examining bioethics and the Holocaust, the role of physicians is often shocking. As a society, we expect more of physicians. Learning about physician participation in the atrocities of the Holocaust prompts many questions: How did caregivers and healers become killers? How did physicians end up so intimately involved in war time atrocities? But the involvement of physicians in war atrocities is not unique to the Holocaust. Throughout history, medical professionals operating together with and in the name of the governing power and particularly the military, have played key roles in genocides, wars, and human rights violations. This chapter will explore the ethics of physician participation in war. We focus on the foundational and recurring issue known as “the problem of dual- loyalty”—the ethical tension of a single moral agent with two competing interests or sets of moral obligations. The underlying assumptions of this debate will be explored to examine how both the professions of medicine and the military involve a set of professional moral obligations that sometimes conflicts.
5
Feldman, Fred. "Conflicts of Obligation." In Doing the Best We Can, 197–215. Dordrecht: Springer Netherlands, 1986. http://dx.doi.org/10.1007/978-94-009-4570-8_9.
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Jones, James W., Laurence B. McCullough, and Bruce W. Richman. "Conflicts of Interest and Conflicts of Commitment." In The Ethics of Surgical Practice, 150–91. Oxford University PressNew York, NY, 2008. http://dx.doi.org/10.1093/oso/9780195321081.003.0005.
Abstract:
Abstract Medical practice abounds with conflicts of interest and conflicts of commitment. Conflicts of interest occur when there are conflicts between the physician’s obligations to the patient and the physician’s self-interest. Conflicts of interest arise because surgeons have multiple self-interests that they cannot or will not abandon in their role as physicians. Conflicts of commitment exist when the surgeon’s obligations to the patient collide with responsibilities to people other than the patient or himself. Conflicts of commitment often arise when the physician simply cannot excuse himself or herself from these obligations, many of which are not related to his professional persona.
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Briggs, Adrian. "Contractual Obligations." In The Conflict of Laws, 211–67. 5th ed. Oxford University PressOxford, 2024. http://dx.doi.org/10.1093/oso/9780198895527.003.0005.
Abstract:
Abstract In this chapter the rules of the conflict of laws for contractual obligations are examined, and explained. The common law approach to the proper law of the contract is taken as the point of departure. The definition of contractual obligations, and of civil and commercial matters, which are both terms of art in the retained Rome I Regulation are then examined in detail. The nature of choice of law by the parties within the framework of the Regulation is measured and compared/contrasted with the approach which was taken by the common law. The particular regimes for special types of contract are examined (that for contracts made by consumers is shown to be in particular need of reform or reconsideration). The solution to questions of contractual formation contained in the retained Rome I Regulation is shown to be principled and far better than the alternatives. The conflicts rules for contracts not within the scope of the Rome I Regulation are briefly examined.
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Briggs, Adrian. "Non-Contractual Obligations." In The Conflict of Laws, 268–313. 5th ed. Oxford University PressOxford, 2024. http://dx.doi.org/10.1093/oso/9780198895527.003.0006.
Abstract:
Abstract In this chapter, the rules of the conflict of laws for non-contractual obligations are examined, and explained. The chapter starts with a survey of English, and other, approaches to the conflict of laws rules for torts, and explains how none of them seems to be satisfactory. The Private International Law (Miscellaneous Provisions) Act 1995 is briefly mentioned, and its rules for finding the applicable law viewed favourably. The retained Rome II Regulation is then examined in relation to torts and to unjust enrichment, negotiorum gestio and culpa in contrahendo. The real difficulties created by a conflicts rule which uses the place where the damage occurred are exposed. Some solutions are proposed, but the rule is assessed to be one which has not worked as well as might have been hoped for. The approach to concurrent contractual and non-contractual obligations is shown to be rational and advantageous.
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Lynch, Holly Fernandez. "Physician Obligations and Sacrifices." In Conflicts of Conscience in Health Care, 215–40. The MIT Press, 2008. http://dx.doi.org/10.7551/mitpress/9780262123051.003.0053.
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Govindaraj, V. C. "The Law of Obligations." In The Conflict of Laws in India, 53–68. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780199495603.003.0005.
Abstract:
The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal obligation. This chapter discusses the following: foreign contracts and the conflicts resolution process; express choice of law; informed or implied intention; inferred choice of law; inference as to the validity of a contract in case of conflict; absence of express or inferred choice of law; presumptions relating to the proper law doctrine; whether the proper law signifies connection with a country or with the system of law; time factor as an aid to interpretation; the doctrine of renvoi vis-à-vis the proper law; and foreign torts.
Conference papers on the topic "Conflicts of obligations":
1
Dzhindzholiya, Raul'. "On the right of children to protection in armed conflict." In Development of legal systems of Russia and foreign countries : problems of theory and practice. ru: Publishing Center RIOR, 2023. http://dx.doi.org/10.29039/02110-1-50-61.
Abstract:
The article deals with the rights of children in international conflicts. The author focuses on international legal mechanisms for the protection of children in armed conflict, on the issues of compliance and fulfillment of obligations defined by international agreements and the activities of the International Committee of the Red Cross. The article proposes measures to improve international legal instruments for the protection of the rights of children in armed conflict
2
Thøgersen, Marie. "Obligations of Non-participating States When Hackers on Their Territory Engage in Armed Conflicts." In 2023 15th International Conference on Cyber Conflict: Meeting Reality (CyCon). IEEE, 2023. http://dx.doi.org/10.23919/cycon58705.2023.10182021.
3
Fel’dman, Dmitry Z. "On the question of the activities of the Jews – suppliers of the Russian army in the late 18th century (on archival materials)." In Торговля, купечество и таможенное дело в России в XVI–XX веках. ИПЦ НГУ, 2023. http://dx.doi.org/10.31518/tktdr-35-2023-07.
Abstract:
The article, based on archival sources, is devoted to the issue of the activities of the Jews as suppliers of the Russian army in the late 18th century, during the military conflicts between Russia and Turkey and the partitions of Poland. Those activities became possible largely thanks to the support and participation of the favorite of Empress Catherine II His Serene Highness Prince G. A. Potemkin-Tavricheskiy, who was very sympathetic and respectful towards “useful” Russian Jews. The transfer of contracts for the supply of troops and hospitals to the Jews was almost always facilitated by the lower prices offered by them at auction, as well as the punctual fulfillment of their commercial obligations. The considered plots represent another perspective of the study of problem of integrating the former Polish Jewry, who was engaged in trade and crafts, into the Russian impire society.
4
Essaouini, Nada, Frederic Cuppens, Nora Cuppens-Boulahia, and Anas Abou El Kalam. "Conflict Management in Obligation with Deadline Policies." In 2013 Eighth International Conference on Availability, Reliability and Security (ARES). IEEE, 2013. http://dx.doi.org/10.1109/ares.2013.12.
5
Ermakov, Dmitrii Nikolaevich, and Galina Vladimirovna Surkova. "International experience in reducing losses of labor resources in the context of minimizing industrial conflicts." In Сollection of articles. Publishing house Sreda, 2018. http://dx.doi.org/10.31483/r-11282.
Abstract:
The constitutions of many States set out the obligation of the government to guarantee a well-functioning and reliable system of protection against industrial injuries. Whether the government provides workers ' compensation insurance directly, or when it is delegated to a third party (special authorities or insurance companies), the government is still responsible for the operation of the system. The latter is of particular importance, since the settlement of claims for workers ' compensation insurance is of a long-term nature. An effective system of protection against industrial injuries and occupational diseases should be considered not only as a type of insurance but as an absolute need of the productive sector and as one of the foundations of social peace and economic stability.
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Jelinić, Srećko. "OTKUP POTRAŽIVANjA ILI PRODAJA DUGOVANjA KAO PRAVNI POSAO U TRŽIŠTU KAPITALA." In XIX majsko savetovanje. University of Kragujevac, Faculty of Law, 2023. http://dx.doi.org/10.46793/xvixmajsko.003j.
Abstract:
Capital markets require efficient and secure legislation (legal infrastructure). In the construction of the aforementioned, the targeted actions of the European Parliament and the Council and the European Commission since 2018 have been focused on the rules on the transfer of ownership (especially over securities) and the effects of assigning claims to third parties. The aim of this proposal was to ensure legal certainty by establishing uniform rules for the conflict of laws at the level of the Union and thereby help to increase the number of crossborder transactions with claims. A contribution to legal certainty is the determination of unique rules on organizations that have as their activity the collection of claims, either in their own name and for their own account (this is preceded by the transfer of claims) or else in the name and for the account of creditors (the original creditor) or other recipients of claims, who acquired it in the process of disposing of this right. National regulations on the assignment of claims (national substantive law), mainly taking as a basis the Law on Obligations and the Law on Consumer Protection and the Enforcement Law in the focus of the regulation, do not provide a sufficient legal basis for all aspects of debtor's protection, not even in terms of creditor protection. Such a situation conditioned or produced the current chaos on the internal capital market and the emergence of numerous debt collection agencies and confusion in the way they operate and collect debts with frequent violations of the right to protect personal data. In this regard, the law also shows as living organism which is subject to constant changes through the creation of new regulations or the modification of existing ones. The influence of European regulations on national regulations is not only predictable, but also a legal obligation of the Republic of Croatia as a member of the European Union. Capital trading on the capital market simply requires a review, at least of the modern regulations from 2005 or even later in every respect.
7
Jelinić, Srećko. "OTKUP POTRAŽIVANjA ILI PRODAJA DUGOVANjA KAO PRAVNI POSAO U TRŽIŠTU KAPITALA." In XIX majsko savetovanje. University of Kragujevac, Faculty of Law, 2023. http://dx.doi.org/10.46793/xixmajsko.003j.
Abstract:
Capital markets require efficient and secure legislation (legal infrastructure). In the construction of the aforementioned, the targeted actions of the European Parliament and the Council and the European Commission since 2018 have been focused on the rules on the transfer of ownership (especially over securities) and the effects of assigning claims to third parties. The aim of this proposal was to ensure legal certainty by establishing uniform rules for the conflict of laws at the level of the Union and thereby help to increase the number of crossborder transactions with claims. A contribution to legal certainty is the determination of unique rules on organizations that have as their activity the collection of claims, either in their own name and for their own account (this is preceded by the transfer of claims) or else in the name and for the account of creditors (the original creditor) or other recipients of claims, who acquired it in the process of disposing of this right. National regulations on the assignment of claims (national substantive law), mainly taking as a basis the Law on Obligations and the Law on Consumer Protection and the Enforcement Law in the focus of the regulation, do not provide a sufficient legal basis for all aspects of debtor's protection, not even in terms of creditor protection. Such a situation conditioned or produced the current chaos on the internal capital market and the emergence of numerous debt collection agencies and confusion in the way they operate and collect debts with frequent violations of the right to protect personal data. In this regard, the law also shows as living organism which is subject to constant changes through the creation of new regulations or the modification of existing ones. The influence of European regulations on national regulations is not only predictable, but also a legal obligation of the Republic of Croatia as a member of the European Union. Capital trading on the capital market simply requires a review, at least of the modern regulations from 2005 or even later in every respect.
8
Golub, Jura. "CONTEMPORARY FORMS OF WORK WITH A DIGITAL FEATURE IN PRIVATE INTERNATIONAL LAW." In International Scientific Conference on International, EU and Comparative Law Issues “Law in the Age of Modern Technologies”. Faculty of Law, Josip Juraj Strossmayer University of Osijek, 2023. http://dx.doi.org/10.25234/eclic/28269.
Abstract:
Digitalization has enabled the rapid development of the gig economy and changed the entire paradigm in such a way that through digitalization people are increasingly achieving their primary employment. As a result, there is a frequent occurrence of the phenomenon of digital nomads and platform workers. Although initially conceived as freelance jobs, in certain cases, the legal relationships of digital nomads or platform workers take on the characteristics of an employment relationship. To circumvent fiscal and labour obligations, digital nomads or platform workers are often defined in contracts as self-employed individuals or independent contractors, resulting in a deprivation of labour rights. Consequently, a challenge arises for European private international law in terms of the correct characterization regarding the legal relationship and, subsequently, the application of the appropriate conflict of law rule to determine the applicable law.
9
Beutel, Jochen, Edmunds Broks, Arnis Buka, and Christoph Schewe. "Setting Aside National Rules that Conflict EU law: How Simmenthal Works in Germany and in Latvia?" In The 8th International Scientific Conference of the Faculty of Law of the University of Latvia. University of Latvia Press, 2022. http://dx.doi.org/10.22364/iscflul.8.2.10.
Abstract:
At the centre of this article is the Simmenthal line of cases of the Court of Justice of the European Union, which establish the duty of every national court or administrative authority not to apply any national law that conflicts with the EU law. The article provides a brief overview of the evolution of the Simmenthal case law at the EU level. It then proceeds to assess how Simmenthal is applied at national level through comparative analysis of experience from Germany and Latvia. A particular emphasis in that regard is placed on the role of constitutional courts, as well as on the role of administrative authorities. Research from both countries points to a general adherence to the obligation established by Simmenthal. However, it also indicates certain discrepancies in national legislation, which obscure strict application of Simmenthal, especially for national administrations. Particularly in Latvia administration is not entitled to disapply national law on its own motion, whereas – explicitly following the Simmenthal doctrine – it would (theoretically) be entitled to do so in Germany.
10
Hodermarsky, Jan, and Vlastislav Stavinoha. "Condifentiality of Arbitral Awards on National, International and Institutional Level." In COFOLA International 2022. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0231-2022-12.
Abstract:
Confidentiality of arbitration is told to be one of the reasons why parties actually choose to arbitrate. The question of whether the arbitral award should remain confidential is however not unified across different jurisdictions. The regulation of this matter varies even when it comes to rules of various arbitration tribunals. Some jurisdictions consider the confidentiality of arbitral award to be an implied obligation derived from the very nature of arbitral process. This article analyses the legal regulation of confidentiality of arbitral awards on various levels while the importance of the publication is presented in the context of the lack of decisional coherence in international arbitration. Further, the resolution of potential conflict of the regulations is analysed. There are good reasons for making awards publicly available. Considering the information society of the 21st century, the fact that the publication of awards is regulated differently in different jurisdictions is a hindrance of parties’ legal certainty.
Reports on the topic "Conflicts of obligations":
1
Wang, Ao, Shaoda Wang, and Xiaoyang Ye. When Information Conflicts with Obligations: the Role of Motivated Cognition. Cambridge, MA: National Bureau of Economic Research, October 2022. http://dx.doi.org/10.3386/w30581.
2
Burniske, Jessica, Dustin Lewis, and Naz Modirzadeh. Suppressing Foreign Terrorist Fighters and Supporting Principled Humanitarian Action: A Provisional Framework for Analyzing State Practice. Harvard Law School Program on International Law and Armed Conflict, October 2015. http://dx.doi.org/10.54813/nrmd2833.
Abstract:
In 2014, reports suggested that a surge of foreign jihadists were participating in armed conflicts in Syria, Iraq, and elsewhere. The United Nations Security Council responded by imposing in Resolution 2178 (2014) an array of obligations on member states to counter the threat posed by “foreign terrorist fighters” (FTFs). In the intervening year, those states have taken a range of actions — though at various speeds and with varying levels of commitment — to implement the FTF obligations imposed by the Council. Meanwhile, many states continue to fund and otherwise throw their support behind life-saving humanitarian relief for civilians in armed conflicts around the world — including conflicts involving terrorists. Yet, in recent years, members of the humanitarian community have been increasingly aware of the real, perceived, and potential impacts of counterterrorism laws on humanitarian action. Part of their interest stems from the fact that certain counterterrorism laws may, intentionally or unintentionally, adversely affect principled humanitarian action, especially in regions where terrorist groups control territory (and thus access to civilians, too). The effects of these laws may be widespread — ranging from heightened due diligence requirements on humanitarian organizations to restrictions on travel, from greater government scrutiny of national and regional staff of humanitarian organizations to decreased access to financial services and funding. Against that backdrop, this briefing report has two aims: first, to provide a primer on the most salient issues at the intersection of counterterrorism measures and humanitarian aid and assistance, with a focus on the ascendant FTF framing. And second, to put forward, for critical feedback and assessment, a provisional methodology for evaluating the following question: is it feasible to subject two key contemporary wartime concerns — the fight against FTFs and supporting humanitarian aid and assistance for civilians in terrorist-controlled territories — to meaningful empirical analysis?
3
Lewis, Dustin, Naz Modirzadeh, and Gabriella Blum. Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism. Harvard Law School Program on International Law and Armed Conflict, September 2015. http://dx.doi.org/10.54813/hwga7438.
Abstract:
The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate international humanitarian law (IHL) protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly. In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge. These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats. The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for designating those who facilitate such care as terrorists themselves. The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness - or, at least, the indeterminateness and variability - of the normative framework.
4
Lewis, Dustin, and Naz Modirzadeh. Taking into Account the Potential Effects of Counterterrorism Measures on Humanitarian and Medical Activities: Elements of an Analytical Framework for States Grounded in Respect for International Law. Harvard Law School Program on International Law and Armed Conflict, May 2021. http://dx.doi.org/10.54813/qbot8406.
Abstract:
For at least a decade, States, humanitarian bodies, and civil-society actors have raised concerns about how certain counterterrorism measures can prevent or impede humanitarian and medical activities in armed conflicts. In 2019, the issue drew the attention of the world’s preeminent body charged with maintaining or restoring international peace and security: the United Nations Security Council. In two resolutions — Resolution 2462 (2019) and Resolution 2482 (2019) — adopted that year, the Security Council urged States to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law (IHL). By implicitly recognizing that measures adopted to achieve one policy objective (countering terrorism) can impair or prevent another policy objective (safeguarding humanitarian and medical activities), the Security Council elevated taking into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities to an issue implicating international peace and security. In this legal briefing, we aim to support the development of an analytical framework through which a State may seek to devise and administer a system to take into account the potential effects of counterterrorism measures on humanitarian and medical activities. Our primary intended audience includes the people involved in creating or administering a “take into account” system and in developing relevant laws and policies. Our analysis zooms in on Resolution 2462 (2019) and Resolution 2482 (2019) and focuses on grounding the framework in respect for international law, notably the U.N. Charter and IHL. In section 1, we introduce the impetus, objectives, and structure of the briefing. In our view, a thorough legal analysis of the relevant resolutions in their wider context is a crucial element to laying the conditions conducive to the development and administration of an effective “take into account” system. Further, the stakes and timeliness of the issue, the Security Council’s implicit recognition of a potential tension between measures adopted to achieve different policy objectives, and the relatively scant salient direct practice and scholarship on elements pertinent to “take into account” systems also compelled us to engage in original legal analysis, with a focus on public international law and IHL. In section 2, as a primer for readers unfamiliar with the core issues, we briefly outline humanitarian and medical activities and counterterrorism measures. Then we highlight a range of possible effects of the latter on the former. Concerning armed conflict, humanitarian activities aim primarily to provide relief to and protection for people affected by the conflict whose needs are unmet, whereas medical activities aim primarily to provide care for wounded and sick persons, including the enemy. Meanwhile, for at least several decades, States have sought to prevent and suppress acts of terrorism and punish those who commit, attempt to commit, or otherwise support acts of terrorism. Under the rubric of countering terrorism, States have taken an increasingly broad and diverse array of actions at the global, regional, and national levels. A growing body of qualitative and quantitative evidence documents how certain measures designed and applied to counter terrorism can impede or prevent humanitarian and medical activities in armed conflicts. In a nutshell, counterterrorism measures may lead to diminished or complete lack of access by humanitarian and medical actors to the persons affected by an armed conflict that is also characterized as a counterterrorism context, or those measures may adversely affect the scope, amount, or quality of humanitarian and medical services provided to such persons. The diverse array of detrimental effects of certain counterterrorism measures on humanitarian and medical activities may be grouped into several cross-cutting categories, including operational, financial, security, legal, and reputational effects. In section 3, we explain some of the key legal aspects of humanitarian and medical activities and counterterrorism measures. States have developed IHL as the primary body of international law applicable to acts and omissions connected with an armed conflict. IHL lays down several rights and obligations relating to a broad spectrum of humanitarian and medical activities pertaining to armed conflicts. A violation of an applicable IHL provision related to humanitarian or medical activities may engage the international legal responsibility of a State or an individual. Meanwhile, at the international level, there is no single, comprehensive body of counterterrorism laws. However, States have developed a collection of treaties to pursue specific anti-terrorism objectives. Further, for its part, the Security Council has assumed an increasingly prominent role in countering terrorism, including by adopting decisions that U.N. Member States must accept and carry out under the U.N. Charter. Some counterterrorism measures are designed and applied in a manner that implicitly or expressly “carves out” particular safeguards — typically in the form of limited exceptions or exemptions — for certain humanitarian or medical activities or actors. Yet most counterterrorism measures do not include such safeguards. In section 4, which constitutes the bulk of our original legal analysis, we closely evaluate the two resolutions in which the Security Council urged States to take into account the effects of (certain) counterterrorism measures on humanitarian and medical activities. We set the stage by summarizing some aspects of the legal relations between Security Council acts and IHL provisions pertaining to humanitarian and medical activities. We then analyze the status, consequences, and content of several substantive elements of the resolutions and what they may entail for States seeking to counter terrorism and safeguard humanitarian and medical activities. Among the elements that we evaluate are: the Security Council’s new notion of a prohibited financial “benefit” for terrorists as it may relate to humanitarian and medical activities; the Council’s demand that States comply with IHL obligations while countering terrorism; and the constituent parts of the Council’s notion of a “take into account” system. In section 5, we set out some potential elements of an analytical framework through which a State may seek to develop and administer its “take into account” system in line with Resolution 2462 (2019) and Resolution 2482 (2019). In terms of its object and purpose, a “take into account” system may aim to secure respect for international law, notably the U.N. Charter and IHL pertaining to humanitarian and medical activities. In addition, the system may seek to safeguard humanitarian and medical activities in armed conflicts that also qualify as counterterrorism contexts. We also identify two sets of preconditions arguably necessary for a State to anticipate and address relevant potential effects through the development and execution of its “take into account” system. Finally, we suggest three sets of attributes that a “take into account” system may need to embody to achieve its aims: utilizing a State-wide approach, focusing on potential effects, and including default principles and rules to help guide implementation. In section 6, we briefly conclude. In our view, jointly pursuing the policy objectives of countering terrorism and safeguarding humanitarian and medical activities presents several opportunities, challenges, and complexities. International law does not necessarily provide ready-made answers to all of the difficult questions in this area. Yet devising and executing a “take into account” system provides a State significant opportunities to safeguard humanitarian and medical activities and counter terrorism while securing greater respect for international law.
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Lewis, Dustin, Radhika Kapoor, and Naz Modirzadeh. Advancing Humanitarian Commitments in Connection with Countering Terrorism: Exploring a Foundational Reframing concerning the Security Council. Harvard Law School Program on International Law and Armed Conflict, December 2021. http://dx.doi.org/10.54813/uzav2714.
Abstract:
The imperative to provide humanitarian and medical services on an urgent basis in armed conflicts is anchored in moral tenets, shared values, and international rules. States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory. In this guide for States, we present a framework to reconfigure relations between these core commitments by assessing the counterterrorism architecture through the lens of impartial humanitarianism. We aim in particular to provide an evidence base and analytical frame for States to better grasp key legal and policy issues related to upholding respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions. We do so because the lack of knowledge regarding interpretation and implementation of counterterrorism resolutions matters for the coherence, integrity, and comprehensiveness of humanitarian policymaking and protection of the humanitarian imperative. In addition to analyzing foundational concerns and evaluating discernible behaviors and attitudes, we identify avenues that States may take to help achieve pro-humanitarian objectives. We also endeavor to help disseminate indications of, and catalyze, States’ legally relevant positions and practices on these issues. In section 1, we introduce the guide’s impetus, objectives, target audience, and structure. We also describe the methods that we relied on and articulate definitions for key terms. In section 2, we introduce key legal actors, sources of law, and the notion of international legal responsibility, as well as the relations between international and national law. Notably, Security Council resolutions require incorporation into national law in order to become effective and enforceable by internal administrative and judicial authorities. In section 3, we explain international legal rules relevant to advancing the humanitarian imperative and upholding respect for principled humanitarian action, and we sketch the corresponding roles of humanitarian policies, programs, and donor practices. International humanitarian law (IHL) seeks to ensure — for people who are not, or are no longer, actively participating in hostilities and whose needs are unmet — certain essential supplies, as well as medical care and attention for the wounded and sick. States have also developed and implemented a range of humanitarian policy frameworks to administer principled humanitarian action effectively. Further, States may rely on a number of channels to hold other international actors to account for safeguarding the humanitarian imperative. In section 4, we set out key theoretical and doctrinal elements related to accepting and carrying out the Security Council’s decisions. Decisions of the Security Council may contain (binding) obligations, (non-binding) recommendations, or a combination of the two. UN members are obliged to carry out the Council’s decisions. Member States retain considerable interpretive latitude to implement counterterrorism resolutions. With respect to advancing the humanitarian imperative, we argue that IHL should represent a legal floor for interpreting the Security Council’s decisions and recommendations. In section 5, we describe relevant conduct of the Security Council and States. Under the Resolution 1267 (1999), Resolution 1989 (2011), and Resolution 2253 (2015) line of resolutions, the Security Council has established targeted sanctions as counterterrorism measures. Under the Resolution 1373 (2001) line of resolutions, the Security Council has adopted quasi-“legislative” requirements for how States must counter terrorism in their national systems. Implementation of these sets of resolutions may adversely affect principled humanitarian action in several ways. Meanwhile, for its part, the Security Council has sought to restrict the margin of appreciation of States to determine how to implement these decisions. Yet international law does not demand that these resolutions be interpreted and implemented at the national level by elevating security rationales over policy preferences for principled humanitarian action. Indeed, not least where other fields of international law, such as IHL, may be implicated, States retain significant discretion to interpret and implement these counterterrorism decisions in a manner that advances the humanitarian imperative. States have espoused a range of views on the intersections between safeguarding principled humanitarian action and countering terrorism. Some voice robust support for such action in relation to counterterrorism contexts. A handful call for a “balancing” of the concerns. And some frame respect for the humanitarian imperative in terms of not contradicting counterterrorism objectives. In terms of measures, we identify five categories of potentially relevant national counterterrorism approaches: measures to prevent and suppress support to the people and entities involved in terrorist acts; actions to implement targeted sanctions; measures to prevent and suppress the financing of terrorism; measures to prohibit or restrict terrorism-related travel; and measures that criminalize or impede medical care. Further, through a number of “control dials” that we detect, States calibrate the functional relations between respect for principled humanitarian action and countering terrorism. The bulk of the identified counterterrorism measures and related “control dials” suggests that, to date, States have by and large not prioritized advancing respect for the humanitarian imperative at the national level. Finally, in section 6, we conclude by enumerating core questions that a State may answer to help formulate and instantiate its values, policy commitments, and legal positions to secure respect for principled humanitarian action in relation to counterterrorism contexts.
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Kelly, Luke. Lessons Learned on Cultural Heritage Protection in Conflict and Protracted Crisis. Institute of Development Studies (IDS), April 2021. http://dx.doi.org/10.19088/k4d.2021.068.
Abstract:
This rapid review examines evidence on the lessons learned from initiatives aimed at embedding better understanding of cultural heritage protection within international monitoring, reporting and response efforts in conflict and protracted crisis. The report uses the terms cultural property and cultural heritage interchangeably. Since the signing of the Hague Treaty in 1954, there has bee a shift from 'cultural property' to 'cultural heritage'. Culture is seen less as 'property' and more in terms of 'ways of life'. However, in much of the literature and for the purposes of this review, cultural property and cultural heritage are used interchangeably. Tangible and intangible cultural heritage incorporates many things, from buildings of globally recognised aesthetic and historic value to places or practices important to a particular community or group. Heritage protection can be supported through a number of frameworks international humanitarian law, human rights law, and peacebuilding, in addition to being supported through networks of the cultural and heritage professions. The report briefly outlines some of the main international legal instruments and approaches involved in cultural heritage protection in section 2. Cultural heritage protection is carried out by national cultural heritage professionals, international bodies and non-governmental organisations (NGOs) as well as citizens. States and intergovernmental organisations may support cultural heritage protection, either bilaterally or by supporting international organisations. The armed forces may also include the protection of cultural heritage in some operations in line with their obligations under international law. In the third section, this report outlines broad lessons on the institutional capacity and politics underpinning cultural protection work (e.g. the strength of legal protections; institutional mandates; production and deployment of knowledge; networks of interested parties); the different approaches were taken; the efficacy of different approaches; and the interface between international and local approaches to heritage protection.
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Raju, Nivedita, and Laura Bruun. Integrating Gender Perspectives into International Humanitarian Law. Stockholm International Peace Research Institute, August 2023. http://dx.doi.org/10.55163/qilu7567.
Abstract:
International humanitarian law (IHL) aims to limit the impacts of armed conflict through rules and protections. However, while IHL seemingly accords protection to ‘all persons’, it may fail to do so, especially on the basis of gender. In turn, failure to include gender perspectives in IHL can result in inaccurate assessments of civilian harm. This paper explores the missing gender perspectives in IHL and proposes that they be integrated with intersectional considerations. The paper first examines inherent gender bias in the wording of certain IHL rules, highlighting several issues including gender essentialism, limited distinction between sex and gender, and the need to overcome a binary approach to gender to ensure adequate protections for the LGBTQIA+ community. The paper also examines key rules of IHL which are particularly sensitive to bias in interpretation and application, including certain rules on weapons, the rules guiding the conduct of hostilities, and obligations to provide legal advice and legal training to the armed forces. Finally, the paper concludes with action points to more effectively integrate intersectional gender perspectives into IHL.
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Brockmann, Kolja, Mark Bromley, and Lauriane Héau. Adapting the Missile Technology Control Regime for Current and Future Challenges. Stockholm International Peace Research Institute, November 2022. http://dx.doi.org/10.55163/qdbn4348.
Abstract:
The Missile Technology Control Regime (MTCR) is a cornerstone of the non-proliferation architecture for missiles and other uncrewed aerial vehicles. However, geopolitical and technical developments and operational challenges threaten the regime’s effectiveness and create a need for reform in several areas. The MTCR partners should develop a clear strategy for determining if and how to expand MTCR membership. To increase the number of adherents, partners should pursue reinforced outreach and expand and promote the benefits offered. By improving the transparency of its procedures and deliberations, the regime can make them more understandable for non-partners. The partners can also improve the MTCR’s legitimacy by emphasizing that it provides public goods and helps states to meet their international obligations. The regime can also address the challenges of emerging technologies by focusing on technical deliberations and sharing information and good practices. Through all this, the MTCR must ensure its continued functioning in the face of geopolitical tensions and armed conflict between partners. This SIPRI Policy Brief summarizes the findings and presents the policy recommendations from a longer report, see Brockmann, K., Bromley, M. and Héau, L., The Missile Technology Control Regime at a Crossroads: Adapting the Regime for Current and Future Challenges, SIPRI Report (SIPRI, Stockholm, 2022).
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Brockmann, Kolja, Mark Bromley, and Lauriane Héau. The Missile Technology Control Regime at a Crossroads: Adapting the Regime for Current and Future Challenges. Stockholm International Peace Research Institute, December 2022. http://dx.doi.org/10.55163/ycva4831.
Abstract:
The Missile Technology Control Regime (MTCR) is a cornerstone of the non-proliferation architecture for missiles and other uncrewed aerial vehicles. However, geopolitical and technical developments and operational challenges threaten the regime’s effectiveness and create a need for reform in several areas. The MTCR partners should develop a clear strategy for determining if and how to expand MTCR membership. To increase the number of adherents, partners should pursue reinforced outreach and expand and promote the benefits offered. By improving the transparency of its procedures and deliberations, the regime can make them more understandable for non-partners. The partners can also improve the MTCR’s legitimacy by emphasizing that it provides public goods and helps states to meet their international obligations. The regime can also address the challenges of emerging technologies by focusing on technical deliberations and sharing information and good practices. Through all this, the MTCR must ensure its continued functioning in the face of geopolitical tensions and armed conflict between partners. This SIPRI Report is the final output of the SIPRI research project ‘Quo Vadis MTCR: The Missile Technology Control Regime at a Crossroads’, co-funded by the Swiss Federal Department for Foreign for Foreign Affairs and the German Federal Foreign Office. It provides a comprehensive analysis of current challenges to the MTCR and provides extensive policy recommendations to the MTCR partners. A concise summary of the report’s findings and its policy recommendations is also available as a SIPRI Policy Brief, see Brockmann, K., Bromley, M. and Héau, L., Adapting the Missile Technology Control Regime for Current and Future Challenges, SIPRI Policy Brief (SIPRI, Stockholm, 2022).