Книги з теми "Non-proportionality"

The chapter examines the traditional requirement that a humanitarian war must be proportionate to be justified. It distinguishes proportionality from necessity and, further, narrow from wide proportionality. The chapter discusses the concept of culpable threat, which is particularly important in humanitarian intervention, as there is no such thing as a non-culpable tyrant. It then introduces a distinction between collateral proportionality and supervening proportionality. The first one is the harm done to bystanders in the battle. The second one is the more remote harm done to bystanders after the war has ended. The distinction determines different degrees of blameworthiness for commanders who start a war that ends badly. Finally, the chapter analyzes the relationship between knowledge and permissibility of action.

The principle of proportionality is one of the cornerstones of International Humanitarian Law (IHL). Almost all states involved in armed conflicts recognize that it is prohibited to launch an attack that is expected to cause incidental harm to civilians that exceeds the direct military advantage anticipated from the attack. This prohibition is included in military manuals, taught in professional courses, and accepted as almost axiomatic. And yet, the exact meaning of this principle is vague. Almost every issue is in dispute—from the most elementary question of how to compare civilian harm and military advantage, to the possible obligation to employ accurate but expensive weapons. Controversy is especially rife regarding asymmetrical conflicts, in which many modern democracies are involved. How exactly should proportionality be implemented when the enemy is not an army, but a non-state actor embedded within a civilian population? What does it mean to use precautions in attack, when almost every attack is directed at objects that are used for both military and civilian purposes?

This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.

This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.

This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.

This chapter is concerned with a single consideration: the degree of proportionality between a light signal and its resulting electrical output. This is formally referred to as linearity, which depends on the suitability of the chosen PMT and the mode of operation (pulsed or analogue). Applications fall into two groups: analogue operation (DC) and transient applications. Linearity in a pulsed mode of operation concerns both pulse height (charge) and the rate of events. Generally, in the DC mode, only the mean anode current is relevant. Methods for determining both forms of non-linearity are presented, based on actual measurements. Test methods using multiple light sources, bootstrapping, single step (piggyback), and shot noise are investigated. A method for uncovering non-linearity in high-Z scintillators by using coincident gamma emissions (60Co) is demonstrated. An analytical means for correcting results at the 1 % level is provided.

This chapter discusses the provisional measures used to preserve the integrity of an investment arbitration. It first reviews the applicable rules and standards utilized by arbitral tribunals to determine whether to grant a request for provisional measures, including before tribunals applying the International Centre for Settlement of Investment Disputes (ICSID), ICSID Additional Facility, and UNCITRAL rules. In particular, it outlines five criteria that must generally be met to grant a request for provisional measures: prima facie jurisdiction, prima facie establishment of the case, urgency, imminent danger of serious prejudice (necessity), and proportionality. The chapter proceeds by considering case examples of the types of provisional measures requested by parties, namely: security for costs, specific performance, stop parallel domestic proceedings, preservation of documents, preservation of status quo, and non-aggravation of the dispute.

This contribution summarizes the facts of the celebrated incident from 1837, in which British militia from Upper Canada crossed to the US shore of the Niagara River and set adrift a small rebel-operated vessel, The Caroline (which drifted over the Falls). The chapter cites the lengthy correspondence between US Secretary of State, Daniel Webster, and British Government’s representatives in Washington (Mr Fox and Lord Ashburton), in which Webster repeatedly used the celebrated Caroline formula (“a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”). The case is referred to, even today, in discussions of anticipatory self-defence, the requirements of necessity and proportionality, and the use of force against non-State actors. The chapter concludes by examining differing views on the current relevance of the Caroline incident and formula.

This chapter deals with complex surfaces and their finite coverings branched along divisors, that is, subvarieties of codimension 1. In particular, it considers coverings branched over transversally intersecting divisors. Applying this to linear arrangements in the complex projective plane, the chapter first blows up the projective plane at non-transverse intersection points, that is, at those points of the arrangement where more than two lines intersect. These points are called singular points of the arrangement. This gives rise to a complex surface and transversely intersecting divisors that contain the proper transforms of the original lines. The chapter also introduces the divisor class group, their intersection numbers, and the canonical divisor class. Finally, it describes the Chern numbers of a complex surface in order to define the proportionality deviation of a complex surface and to study its behavior with respect to finite covers.

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

This chapter examines the rules and principles that govern a naval or aerial blockade or some other form of interference with foreign vessels and aircraft in the absence of an explicit authorization by the UN Security Council. After clarifying the concept of blockade under the jus ad bellum and the jus in bello, it considers blockades authorized as military enforcement measures. It also discusses some unresolved or even contested issues regarding the legality of blockades, with reference to blockades in situations other than international armed conflict and the principle of proportionality in relation to humanity. The scope of interdiction operations and its legal bases under international treaties are analysed next, together with maritime interdiction operations and the applicability of prize law during non-international armed conflicts. Finally, the chapter explores the right of individual or collective self-defence as a basis for interdiction operations.

Law in general, including constitutional rights and legal argumentation, has a dual nature. This is the underlying thesis of this collection of twenty-one chapters devoted to legal philosophy and constitutional law. Law connects a real dimension, defined by authoritative issuance and social efficacy, with an ideal dimension, defined by the claim to correctness, which essentially includes a claim to justice. The chapters of the first part of the book establish on this basis a non-positivistic concept of law. In the second part, the concept of constitutional rights is connected with proportionality analysis, explicated by principles theory and understood as a necessary condition of the rationality of the application of constitutional rights. In the third part, it is shown that rationality is possible in law because rational legal argumentation is possible. Here the basis is discourse theory. The final result is a system that brings the formal idea of legal certainty together with the substantive idea of justice.

This chapter examines the use of remotely piloted and other robotics during war and outside the context of war during permissible measures of self-defence and their implications for the jus ad bellum, interpretation of Articles 2(4) and 51 of the UN Charter, and applications of underlying general principles. It discusses the phenomenon of ‘remotely piloted warfare’ as it applies to the use of force by state and non-state actors with respect to self-defence, collective self-defence, self-determination assistance, regional action, and enforcement action authorized by the Security Council. It then considers the use of remotely piloted attacks, self-defence, and warfare in relation to compliance with the principles of reasonable necessity, distinction in targeting, and proportionality. In particular, the chapter looks at the use of weaponized drones and the possible challenges they present to compliance with basic legal principles that limit violence, and some current applications and issues regarding compliance.

This chapter describes Adam Smith’s views on sympathy and sympathetic judgment(s). It shows that the sympathetic process presupposes and crucially depends on counterfactual, causal reasoning. In particular the chapter argue for four related claims. The first is that according to Smith the sympathetic process depends on a type of causal reasoning that goes well beyond the kind of simulationist theory standardly attributed to him. The second is that the Smithian imagination in the sympathetic process works by way of counterfactual reasoning and that even the feelings we ought to feel as a consequence of the sympathetic process need not be actual, but counterfactual. The third is that Smithian agents are non-trivially understood as belonging to the causal order of nature. This chapter illustrates this third point through an extended digression on Smith’s views on moral luck (the piacular). Fourth, Smithian judgments of propriety are intrinsically judgments about the proportionality of causal relations.

The duty not to interfere in the internal affairs of the receiving State was not included in the original draft by the ILC’s Special Rapporteur, but was introduced through a later amendment. Given the significance which incidents of (alleged) interference had attained even then, this is a somewhat surprising development. In contemporary diplomatic relations, such charges play an important role and affect a wide variety of fields, ranging from criticism of the receiving State, human rights monitoring, support given to factions in that State, etc. This chapter explores the concept of interference, but it also reflects on legitimate interests on the side of the sending State which may allow (and even compel) a diplomatic agent to take measures which his hosts may consider interference. The chapter also suggests mechanisms, including the employment of proportionality, which are capable of mediating between the interests advanced on both sides of the divide.

This book is the first targeted work in the legal literature that investigates environmental challenges in the aftermath of conflict. The volume brings together academics, policy-makers, and practitioners from different disciplines to clarify policies and practices of environmental protection and key legal considerations related to normative frameworks (e.g. international environmental law, international humanitarian law, transitional justice, and human rights), the treatment of substantive principles (e.g. proportionality under jus in bello and jus post bellum, environmental integrity), ‘shared responsibility’, and accountability mechanisms for environmental damage. By providing a comprehensive and in-depth analysis of environmental protection and natural resource management during the transition to peace, the volume reveals strong links between the peace-orientation of jus post bellum and environmental principles, such as intergenerational equity and precaution. There is a great deal of work to do to ensure greater protection of the environment before, during, and after conflict. It remains a challenge to align protection with the political interest of states, and the increasing involvement of non-state actors in armed conflict. This volume marks a starting point for an urgently needed space for states, international organizations, and civil society to discuss, and debate conflict and the environment. By engaging with the International Law Commission’s 2016 Draft Principles on the Protection of the Environment in Relation to Armed Conflicts, the volume adds clarity to the law and momentum to the development of the law in this important area.

The EBA Guidelines on loan origination and monitoring (hereinafter "GL LOM") undoubtedly represent a substantially new piece of the banking regulatory framework. In fact, for the first time, the regulator moves into a topic that was traditionally outside the scope of financial regulation, so far almost exclusively focused on aspects directly linked to both micro- and macro-prudential stability, notably through capital and liquidity management requirements and guidelines on Business Model and Internal Governance. The credit management process, and in particular loan origination and monitoring, has always been typically considered as a business issue under sole responsibility of banks, as it is considered one of the "core" processes (if not the "core" process) of the banking business. As a matter of fact, since the issue of the capital requirement regulation (i.e., Basel II and Basel III), and the introduction of the use requirements for the rating systems, the regulator moved very close, but not yet, to prescribe specific credit assessment criteria, while dictating methodological and organizational requirements for the authorization of the rating systems, and leaving substantial freedom to banks to define their own models and embedded assessment criteria and indicators. With the GL LOM, the regulator takes a further step, remarkably beyond its traditional remit, dictating principles and rules for the evaluation of the credit quality of borrowers. The starting point for this new approach from the regulator can be found in the ECB guidelines on Non-Performing Loans, later endorsed by the Bank of Italy Guidelines for Less Significant Banks, aimed at encouraging banks to define their NPL management processes and establish reduction plans to achieve NPL ratio targets in line with the regulator's expectations. Consistently with the focus on NPL, the regulation on Calendar Provisioning, amending the CRR was issued; as being a Regulation, it involves all banks, and not only significant ones (for which the ECB Addendum also applies). In addition, the new definition of default (the so-called "new Dod") has defined stricter criteria for the transition of exposures to the default status and also made the return of "cured" exposures to the performing status more difficult. The combined effect of these regulatory changes has been to make the default of counterparties not only more probable but also much more "expensive" for the banks. The natural “next step” of these regulatory changes was to "move backward" into the management process covering loan origination and monitoring . The EBA's stated objective with the issuance of the GL LOM is to define "robust and prudent" standards of lending practices so as to maintain a low level of NPLs in the future. Therefore, the focus of the GL LOM is the definition of requirements (some outlined as prescriptions, others in terms of principles) for the creditworthiness assessment of counterparties and for the management of the related data and information. Notwithstanding the fact that the Final Report has articulated the principle of proportionality much more clearly as compared to the Consultation Paper, the GLs set out three macro-categories of counterparties for which specific requirements are defined: • Individuals • Micro and small businesses • Medium and large companies. The GL LOM also provide recommendations about the valuation of guarantees both at origination and during ongoing monitoring, encouraging the use of advanced statistical models. The GL LOM focus on real estate guarantees, while financial collateral is outside the scope of the GL LOM. In the mind of the regulator, the GL LOM should not only reflect industry practices, but also incorporate the latest supervisory guidance on lending, and provide the stimulus to include ESG, AML/CTF and the use of innovative technologies into banking origination and, where applicable, monitoring processes.