Anja Seibert-Fohr

Prosecuting Serious Human Rights Violations

1. Introduction 2. Prosecution under the International Covenant on Civil and Political Rights 3. Prosecution under the American Convention on Human Rights 4. Prosecution under the European Convention of Human Rights 5. Universal Human Rights Convention Explicitly Requiring Prosecution 6. Conceptualizing the Duty to Prosecute under Human Rights Treaties 7. Prosecution of Human Rights Violations under Customary International Law 8. Conclusion

Judicial independence in transition

From the contents: Judicial Independence in Comparative Analysis.- New Challenges in Established Democracies.- Transitional Processes in New Member States of the EU.- Obstacles for Transition in Post-Soviet States.- Conclusion: Judicial Independence in Transition.- Appendix: Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia.

WTO : technical barriers and SPS measures

Preface to the Series Preface to this Volume List of Contributors Table of Abbreviations and Acronyms General Bibliography General Agreement on Tariffs and Trade 1994 Article III GATT (Hestermeyer) Article XI GATT (Wolfrum) Article XX GATT [Introduction] (Wolfrum) Article XX GATT [Chapeau] (Wolfrum) Article XX lit. a GATT (Wenzel) Article XX lit. b GATT (Stoll & Strack) Article XX lit. c GATT (Matz-Luck) Article XX lit. d GATT (Reyes-Knoche & Arend) Article XX lit. e GATT (Wenzel) Article XX lit. f GATT (Matz-Luck) Article XX lit. g GATT (Matz-Luck & Wolfrum) Article XX lit. h GATT (Matz-Luck) Article XX lit. i GATT (Matz-Luck) Article XX lit. j GATT (Matz-Luck) Agreement on Technical Barriers to Trade Preamble TBT (Koebele) Article 1 and Annex 1 TBT (Koebele) Article 2 TBT (Tamiotti) Article 3 TBT (Tamiotti) Article 4 und Annex 3 TBT (Koebele & LaFortune) Article 5 TBT (Munoz) Article 6 TBT (Munoz) Article 7 TBT (Munoz) Article 8 TBT (Munoz) Article 9 TBT (Koebele) Article 10 TBT (Koebele) Article 11 TBT (Krajewski) Article 12 TBT (Krajewski) Article 13 TBT (Bartels) Article 14 and Annex 2 TBT (Schorkopf) Article 15 TBT (Bartels) Agreement on the Application of Sanitary and Phytosanitary Measures Preamble SPS (Charnovitz) Article 1 and Annex A SPS (Charnovitz) Article 2 SPS (Seibert-Fohr) Article 3 SPS (Landwehr) Article 4 SPS (Landwehr) Article 5 SPS (Stoll & Strack) Article 6 SPS (Landwehr) Article 7 and Annex B SPS (Boeckenfoerde) Article 8 and Annex C SPS (Boeckenfoerde) Article 9 SPS (Seibert-Fohr) Article 10 SPS (Seibert-Fohr) Article 11 SPS (Schorkopf) Article 12 SPS (Roeben) Article 13 SPS (Roeben) Article 14 SPS (Roeben) Index

Judicial Independence in Germany

Judicial independence has played an important role in building a democratic order in the Federal Republic of Germany since the end of the Third Reich.1 The Basic Law of 1949 (Grundgesetz) with its elaborate rights catalogue was a reaction to the Nazi dictatorship which had used the judiciary to pursue its inhuman policies.2 In order to protect these fundamental rights in the future the new constitution provided for the separation of powers and gave the judiciary an independent supervisory function. Since then judges have been entrusted with the role of defending the Basic Law, including its rights catalogue, against government encroachments.

Introduction The Challenge of Transition

Strengthening the rule of law has become a key factor in the transition to democracy and the protection of human rights.1 As such it plays a vital role in the activities of those organizations engaged in supporting countries in transition. Though the significance of the rule of law has materialized in international norm setting2 its implementation lacks a solid conceptual foundation.

Judicial Independence – The Normativity of an Evolving Transnational Principle

Considering the vast differences between the states studied in this volume the question arises whether there is any common ground for the meaning of judicial independence which warrants transnational conclusions. There are voices in academic literature contesting the notion of judicial independence as a legally binding principle, on both the national and international levels, and qualifying it as mere rhetoric with varying meanings.

The Fight against Impunity under the International Covenant on Civil and Political Rights

The pronouncements of the Human Rights Committee will be analyzed in order to determine the legal basis for a duty to prosecute human rights violations and whether it is limited to public officials or extends to private perpetrators, too. As will be shown, the question whether States parties are under an obligation to prosecute human rights offenders ultimately depends on whether prosecution is viewed as a mandatory means to protect human rights without alternative. In order to demonstrate how States parties need to deal with human rights violations in detail not only prosecutorial duties but related duties, as the duty to investigate and to provide victims with compensation, will be described. The Human Rights Committee’s pronouncements will be evaluated in order to determine whether there may be an exception from the duty to prosecute human rights violations for the sake of reconciliation.

Law of the sea in dialogue

Global Warming: C. Tomuschat: Global Warming and State Responsibility.- M. Bothe: Measures to Fight Climate Change - A Role for the Law of the Sea?- J. Brunnee: An Agreement in Principle? The Copenhagen Accord and the Post-2012 Climate Regime.- F.L. Morrison: The Reluctance of the United States to Ratify Treaties.- Exploitation and Use of the Global Commons: G. Hafner: The Division of the Commons? The Myth of the Commons: Divide or Perish.- T. Treves: Judical Action for the Common Heritage.- Law of the Sea and Security: M.H. Arsanjani, W.M. Reisman: East African Piracy and the Defense of World Public Order.- T.A. Mensah: Piracy at Sea - a New Approach to an Old Menace.- J.A. Frowein: The Security Council and the Security on the Seas.

Constitutional Guarantees of Judicial Independence in Germany

Judicial independence constitutes one of the fundamental principles of the German Constitution. This paper which was presented as part of the German report to the XVIIth International Congress on Comparative Law in Utrecht in 2006 elaborates on the specific elements of the constitutional guarantee in Germany. Outlining the interpretation by the German Constitutional Court it explains the particular meaning of this concept in the German context. While Italy and Spain understand judicial independence to be one of structural independence the German model with its primary concern for substantive and personal independence differs. Since structural independence applies to judicial functions only, the administration of the judiciary as a matter of democratic accountability is still within the competence of the Ministries of Justice of the federal states. The article explains the appointment process for judges, their tenure and scope of authority, the relevance of their independence in disciplinary proceedings and the limited scope for dismissals. It concludes with the observation that despite the lack of self-governance the constitutional guarantee of judicial independence has been elaborated substantially by the jurisprudence of German courts with the result that in terms of working conditions the German judiciary profits from privileges unknown in foreign countries.