AEL Working Papers
https://hdl.handle.net/1814/11397
AEL Working Papers series (ISSN: 1831-4066)2024-03-28T13:44:53ZThe role of UN investigative mechanism in anchoring fairness in the collaborative turn of international criminal investigations
https://hdl.handle.net/1814/76753
The role of UN investigative mechanism in anchoring fairness in the collaborative turn of international criminal investigations
WISTRAND JOHANSSON, Emil
Increased solidification of accountability norms in relation to international responses to conflict has led to a collaborative turn where new actors – across international and national, public and private divides – participate and collaborate in investigations of core international crimes. This decentralized and highly relational reality of contemporary investigations challenges established understandings of how fairness is to be safeguarded for suspects, victims and witnesses affected by the practices of investigative and prosecutorial actors. Safeguarding fairness in the collaborative turn is crucial because fairness is at the heart of the identity of international criminal law. It is argued that UN investigative mechanisms for Syria (IIIM), Myanmar (IIMM), Da’esh in Iraq (UNITAD) and other similar UN quasi-prosecutorial mandate-holders are well-placed to play a more active and coordinating role in safeguarding fairness in this collaborative turn, in particular vis-à-vis investigative civil society actors. Although lacking capacity to single-handedly foster fairness in investigative practices in conflict situations, UN investigative mechanisms and investigations have the capacity to anchor the collaborative turn in law and public authority, based on principles of impartiality, independence and fairness.
2024-01-01T00:00:00ZReflections on the role of fairness for the sources of international law
https://hdl.handle.net/1814/76754
Reflections on the role of fairness for the sources of international law
KWIECIEŃ, Roman
The paper seeks to discuss the relationship between the sources of international law and fairness. The author intends to address this issue within the framework the following main question: what is the role of fairness for the formal sources of international law? By analysing the relationship between fairness and the formal sources of international law, the author also seeks to respond two other, although substantively relevant, questions: is the typology of these sources listed in Article 38 of the Statute of the ICJ fair?; is soft law a means to fairness in the sources? He claims that fairness is neither material or formal source of international law but it is a procedural value which supports the legitimacy of the making of international law. Thus, it is relevant to the formal, not material, sources of international law. The term ‘formal sources’ is used in the paper in the twofold meaning. First, as instrumentum or ‘containers’ for rules and principles (where the law can be found), and, second, as processes and forms by which rules and principles are made. The author’s proposition is that fairness is primary relevant to the latter meaning. When the international law-making processes are fair, then their results, i.e., the formal sources conceived as instrumentum or ‘containers’ are also fair, and the law may be known. Rules and principles of international law are fair when they satisfy the requirements of a fair international law-making process, in particular, certainty, transparency and authoritativeness/representativeness. That is why, fairness may be seen as a crucial criterion of the legitimacy of international law-making processes. There are close relationships between fairness, law-making, legal certainty, effectiveness of rules and principles and the rule of law. These relationships mark the place of fairness in the sources of international law. The author seeks to point out thar fairness as a product of the constantly changing social and political environment, does not occur in its pure form in practice. As such, fairness is a ‘matter of degree’ in the international law-making. That is why, a realistic goal of the international legal order is neutralization of unfairness as much as possible.
2024-01-01T00:00:00ZA just transition? : investigating the role of human rights in the transition towards net zero societies
https://hdl.handle.net/1814/76752
A just transition? : investigating the role of human rights in the transition towards net zero societies
SAVARESI, Annalisa; WEWERINKE-SINGH, Margaretha
The transition towards net zero societies requires far-reaching changes that risk ignoring or exacerbating existing social inequalities and injustice. The term ‘just transition’ is commonly used to flag the justice implications of decarbonization and its societal impacts. The notion has moved beyond an initial focus on labourers, to encompass broader procedural, distributive, recognition and restorative justice questions. This article investigates the role of human rights in defining the parameters of a just transition. It explores how human rights can accelerate the transition and support greater fairness, but also how they might be perceived to work against climate action. It focuses on two key areas - the land sector and energy sector - to illustrate the complex justice tensions that arise. In doing so, it sheds new light on the role of human rights in addressing justice questions and ensuring that the transition towards net zero societies is inclusive, equitable, and just for all.
2024-01-01T00:00:00ZSaving the humankind with domestic mandatory human rights due diligence laws : a third world approach to international law
https://hdl.handle.net/1814/76750
Saving the humankind with domestic mandatory human rights due diligence laws : a third world approach to international law
LI, Zhuolun; XIANG, Yu
The process of holding transnational corporations (TNCs) accountable for human rights abuses has witnessed longstanding struggles between the Global North and South. Mandatory human rights due diligence (mHRDD) laws are by far the latest legislative endeavors to regulate the human rights practices of TNCs through domestic laws. Currently, major mHRDD laws have emerged within Europe. Through networked global value chains, these laws have profound impacts on nations, populations, and suppliers in the Global South. However, we lack an adequate understanding of the consequences and implications of such laws from their perspectives. This article examines major mHRDD laws from a Third World Approach to International Law (TWAIL) perspective. It identifies three key features of mHRDD laws and explores how each feature may result in unintended oppression in the Global South. It finds that although the initial purpose of mHRDD legislation is to humanize global value chains, such legislation may entrench existing power imbalances between trade partners from Global North and South. Due to the affected stakeholders in the Third World being excluded from the legislative process of mHRDD laws, the protection of the existing laws is limited in that they can only be exercised in alignment with the legislative state’s domestic political and economic interests. This article proposes that mHRDD laws must be reformed to engage with a broader range of stakeholders and suggests the necessity of a business and human rights treaty.
2024-01-01T00:00:00Z