O presente trabalho busca analisar a evolução da discussão dogmática sobre a relação entre direito interno e direito internacional na jurisprudência do Supremo Tribunal Federal. A pesquisa dedica especial atenção a três casos específicos, julgados entre 2008 e 2010, que são representativos de uma nova fase no entendimento corte, em que o Supremo Tribunal Federal tratou de uma série de questões inéditas na sua jurisprudência. São eles a decisão, em 2008, sobre a prisão civil do depositário infiel, proibida pela Convenção Americana de Direitos Humanos; a ADPF no 101, de 2009, sobre a importação de pneus usados e remoldados, cuja regulamentação também foi objeto de decisões no âmbito do Mercosul e da OMC; e a ADPF no 153, de 2010, que discutiu a Lei da Anistia, também tratada na Corte Interamericana de Direitos Humanos. Mapeando as discussões dogmáticas nesses casos, busca-se identificar as implicações dos tratados internacionais e das decisões de tribunais internacionais para o ordenamento jurídico brasileiro, bem como as contradições e omissões de tais decisões. A análise do desenvolvimento da jurisprudência do Supremo Tribunal Federal considera as transformações ocorridas no direito internacional a partir do final da Segunda Guerra Mundial e as mudanças incorporadas às constituições brasileiras, e em especial a Constituição de 1988 e a sua Emenda no 45, de 2004. / This study seeks to analyze the evolution of the dogmatic debate on the relationship between domestic and international law in the Brazilian Supreme Courts case law. The research devotes special attention to three specific cases, decided between 2008 and 2010, which are representative of a new phase in the courts understanding, in which the Supreme Court has dealt with completely new issues. These cases are the following: the decision in 2008 on the civil imprisonment of an unfaithful trustee, prohibited by the American Convention on Human Rights; ADPF No. 101, from of 2009, on the import of used tires, which had also been the subject of decisions within Mercosur and WTO; and ADPF No 153, from 2010, which discussed the Brazilian Amnesty Act, also addressed by the Interamerican Court of Human Rights. By mapping dogmatic discussions of these cases, I seek to identify the implications of international treaties and decisions of international tribunals for the Brazilian legal system, as well as the contradictions and omissions of such decisions. The analysis of the development of the Supreme Courts case law considers the transformation occurring in international law since the end of World War II and the changes incorporated into the Brazilian constitutions, and in particular the Constitution of 1988 and its Amendment No 45 of 2004.

L’effectivité de l’accès aux instances de l’asile dépend de la réunion de plusieurs facteurs qui ne viennent pas uniquement du droit national. La condition sine qua non de l’effectivité d’un tel accès est une réception harmonieuse par les différents Etats, des garanties procédurales indispensables à celui-ci et définies au niveau européen, ce qui suppose toutefois une relation équilibrée entre le droit conventionnel et le droit de l’Union, construite dans un esprit de dialogue. Dans l’établissement de ce dialogue, le législateur de l’Union, tout comme la Cour européenne des droits de l’Homme et la Cour de justice de l’Union européenne jouent un rôle primordial, et si ce dialogue s’avérait dissonant, le droit national pourrait encore corriger les insuffisances ainsi constatées. Certes, à cette fin, il est nécessaire d’établir un dialogue également au niveau national, et ce, non seulement avec les instances européennes mais aussi à l’intérieur de l’Etat entre les autorités administratives et juridictionnelles. In fine, l’effectivité de cet accès est tout autant indispensable dans une dimension transfrontalière afin de rapprocher davantage les législations nationales et de proposer une solution européenne aux problèmes structuraux et systémiques caractérisant cet accès. / The effectiveness of access to asylum bodies depends on a combination of several factors which are not derived solely from national law. The sine qua non of the effectiveness of such access is a harmonious reception by the various Member States of the procedural guarantees essential to it and defined at European level, which presupposes, however, a balanced relationship between ECHR law and Union law built in a spirit of dialogue. In establishing this dialogue, the EU legislator, like the European Court of Human Rights and the Court of Justice of the European Union, plays an essential role, and if this dialogue were to prove dissonant, national law could still correct any shortcomings thus noted. To this end, it is certainly necessary to establish a dialogue also at national level, not only with the EU legislator and the European courts but also between the administrative and judicial authorities at State level. Ultimately, the effectiveness of this access is also essential in a cross-border dimension in order to further approximate national legislation and to propose a European solution to the structural and systemic problems characterizing this access.

After much debate during the war years over how best to respond to Nazi criminality, the United States embarked on an ambitious postwar trial program in occupied Germany, which consisted of three distinct trial sets: the International Military Trial at Nuremburg, the Nuremberg Military Tribunals, and military trials held at the former concentration camp at Dachau. Within the Dachau military tribunal programme, were the concentration camp trials in which personnel from the Dachau, Mauthausen, Buchenwald, Flossenbürg, and Dora-Mittelbau concentration camps were arraigned. These concentration camp trials at Dachau represented the principal attempt by the United States to punish Nazi crimes committed at the concentration camps liberated by the Americans. The prosecutors at Dachau tried 1,045 defendants accused of committing violations of the 'laws of war' as understood through 'customary' international and American military practice. The strain of using traditional military law to prosecute the unprecedented crimes in the Nazi concentration camps was exposed throughout the trials. To meet this challenge, the Dachau concentration camp courts included an inventive legal concept: the use of a 'criminal-conspiracy' charge-in effect arraigning defendants for participating the 'common design' of the concentration camp, 'a criminal organization'. American lawmakers had spent a good deal of time focused on the problem of how to begin the trials (What charges? What courts? Which defendants?) and very little time planning for the aftermath of the trials. Thus, by 1947 and 1948, in the face of growing tensions between the United States and the Soviet Union, the major problem with the Dachau trials was revealed -the lack of long term plans for the appellate process for those convicted. After two scandals that captured the press and the public's attention, the United States Congress held two official investigations of the entire Dachau tribunal programme. Although the resulting reviews, while critical of the Army's clemency process, were largely positive about the trials themselves, the Dachau trials faded from public memory.

Mémoire numérisé par la Division de la gestion de documents et des archives de l'Université de Montréal

Cette étude aborde les questionnements relatifs à l’homologation et à l’entérinement d’une entente de règlement amiable conclue dans le cadre des processus de médiation ou de conciliation administrative. L’étude vise d’abord à clarifier les concepts en définissant précisément la terminologie privilégiée. La mise en œuvre des demandes est ensuite analysée au regard de la compétence des tribunaux administratifs et de celle des tribunaux de droit commun à l’égard d’un accord de conciliation ou d’une transaction conclu dans le cadre d’un litige administratif. Les formalités relatives à la présentation de la demande sont exposées. Les tests de conformité à la loi et à l’ordre public sont ensuite circonscrits pour terminer par un examen des conséquences de l’homologation ou de l’entérinement de l’entente sur les recours ultérieurs possibles tels que le recours en révision administrative ou le recours en révision judiciaire. / This study examines the homologation or approval of a settlement agreement reached under administrative mediation or conciliation. The first part aims to clarify the concepts by defining the preferred terminology in a comprehensive way. The implementation of these applications is then analyzed according to the jurisdiction of administrative tribunals and courts of law with respect to a conciliation agreement or a transaction concluded under administrative proceedings. The formalities relating to the submission of the demand are exposed. The tests for compliance with the law and with public order are then circumscribed to complete with an examination of the consequences of the agreement on eventual remedies, as administrative review or judicial review.

Mémoire numérisé par la Division de la gestion de documents et des archives de l'Université de Montréal

O presente trabalho busca analisar a evolução da discussão dogmática sobre a relação entre direito interno e direito internacional na jurisprudência do Supremo Tribunal Federal. A pesquisa dedica especial atenção a três casos específicos, julgados entre 2008 e 2010, que são representativos de uma nova fase no entendimento corte, em que o Supremo Tribunal Federal tratou de uma série de questões inéditas na sua jurisprudência. São eles a decisão, em 2008, sobre a prisão civil do depositário infiel, proibida pela Convenção Americana de Direitos Humanos; a ADPF no 101, de 2009, sobre a importação de pneus usados e remoldados, cuja regulamentação também foi objeto de decisões no âmbito do Mercosul e da OMC; e a ADPF no 153, de 2010, que discutiu a Lei da Anistia, também tratada na Corte Interamericana de Direitos Humanos. Mapeando as discussões dogmáticas nesses casos, busca-se identificar as implicações dos tratados internacionais e das decisões de tribunais internacionais para o ordenamento jurídico brasileiro, bem como as contradições e omissões de tais decisões. A análise do desenvolvimento da jurisprudência do Supremo Tribunal Federal considera as transformações ocorridas no direito internacional a partir do final da Segunda Guerra Mundial e as mudanças incorporadas às constituições brasileiras, e em especial a Constituição de 1988 e a sua Emenda no 45, de 2004. / This study seeks to analyze the evolution of the dogmatic debate on the relationship between domestic and international law in the Brazilian Supreme Courts case law. The research devotes special attention to three specific cases, decided between 2008 and 2010, which are representative of a new phase in the courts understanding, in which the Supreme Court has dealt with completely new issues. These cases are the following: the decision in 2008 on the civil imprisonment of an unfaithful trustee, prohibited by the American Convention on Human Rights; ADPF No. 101, from of 2009, on the import of used tires, which had also been the subject of decisions within Mercosur and WTO; and ADPF No 153, from 2010, which discussed the Brazilian Amnesty Act, also addressed by the Interamerican Court of Human Rights. By mapping dogmatic discussions of these cases, I seek to identify the implications of international treaties and decisions of international tribunals for the Brazilian legal system, as well as the contradictions and omissions of such decisions. The analysis of the development of the Supreme Courts case law considers the transformation occurring in international law since the end of World War II and the changes incorporated into the Brazilian constitutions, and in particular the Constitution of 1988 and its Amendment No 45 of 2004.

Doctor Legum - LLD / It is rare in law and in other disciplines for a word or a phrase to appear to mean what it does not. This is, however, true when it comes to life imprisonment or life sentence. I Unlike sentences like the death penalty, there have been instances where even those who are expected to know the meaning of the sentence of life imprisonment have misunderstood it.2 This misunderstanding is compounded by the fact that even dictionaries that have always helped us to understand the meaning of the words are of little help when it comes to the definition of life imprisonment. The Oxford Advanced Leamer's Dictionary, for example, defines life sentence to mean 'the punishment by which [some body] spends the rest of their life in prison." It goes ahead to define a 'lifer' as 'a person who has been sent to The ambiguity of life imprisonment could partly explain why the campaign prison for their whole life. The ambiguity of life imprisonment could partly explain why the campaign to abolish the death penalty and substitute it with life imprisonment has option to choose between the death penalty and life-imprisonment, many been successful in many parts of the world. When people are given the option to choose between the death penalty and life-imprisonment, many would oppose the former and favour the latter for various reasons. This is because, inter alia, many people think that an offender sentenced to life imprisonment will be detained for the rest of his natural life. This is of course not true in some cases, and, as Lord Mustil held, The two tribunals that were established after the World War III, the Nuremberg Tribunal and the International Military Tribunal for the Far East, the Tokyo Tribunal, were empowered to impose the death penalty and indeed, as will be discussed later in detail, some offenders were sentenced to death." Although these tribunals were not expressly empowered to 2 sentence offenders to life imprisonment, they did sentence some of the offenders to life imprisonment. However, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) all have jurisdiction to sentence offenders to life imprisonment. At the time of writing, the ICC had not completed any case and therefore had no jurisprudence on life imprisonment." The ICTR has sentenced more offenders to life imprisonment and imprisonment for the remainder of their lives than the ICTY. This thesis reviews cases on life imprisonment in international criminal tribunals in order to examine the theories of punishment that these tribunals considered in sentencing offenders to life imprisonment. There are cases where the ICTR has sentenced offenders to imprisonment for the rest of their natural lives. From a human rights perspective the thesis argues that imprisonment for the remainder of the offender's natural life is inhuman punishment. The statutes of the ICTY, ICTR and ICC provide for circumstances where an offender sentenced by any of those tribunals could be released before the completion of his or her sentence. It is on that basis that it is argued that even offenders sentenced to 3 imprisonment for the remainder of their lives by the ICTR could be released.

"The establishment of the International Criminal Court (ICC) in Rome in 1998 is a milestone for humanity and a watershed in the life of victims of ongoing violations or wars. The Preamble to the Rome Statute of the ICC acknowledges that 'during this century [20th century] millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity'. This dissertation explores the development and state of victims' rights in international criminal law. ... The study consists of five chapters. Chapter one will provide the context in which the study is set. It oulines the basis and structure of the study. Chapter two endeavours to define some of the basic concepts central to the study: victim, witness, compensation, reparation, redress, restitution, etc. This chapter will give a brief overview of victims' rights in the domestic system. It will also analyse the right to an effective remedy in international law with specific focus on the UN human rights system and on regional systems. Chapter three will outline victims' rights before the ad hoc international criminal tribunals and hybrid courts. These tribunals and courts are the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Court of Sierra Leone (SCSL), Extraordinary Chambers in the Courts of Cambodia (ECC), and the Special Pannels for Serious Crimes in East Timor (SPSC). Chapter four is devoted [to] the ICC. It will focus on its provisions dealing with victims' rights and assess whether this mechanism makes effective allowance for victims to be heard and compensated. Chapter five will consist of a summary of the entire presentation and the conclusions drawn from the study. It will make some recommendations for the adequate protection of victims' rights." -- Introduction. / Prepared under the supervision of Dr. Raymond Koen at the Faculty of Law, University of the Western Cape / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2006. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

The purpose of this thesis is to determine whether the Security Council has opened a new avenue for law-making at the international level by adopting resolutions under Chapter VII of the UN Charter which create new norms of international law or modify international norms already in force (the normative resolutions). The normative resolutions analyzed in this study pertain to the areas of counterterrorism and the non-proliferation of weapons of mass-destruction. The new approach of the Security Council has been examined in light of the Third World Approaches in International law (TWAIL), as well as from the viewpoint of mainstream lawyers. Furthermore, 15 years of State practice relating to the implementation of these normative resolutions has been studied with a view to determining whether subsequent State practice confirms the exercise of a law-making function by the Security Council. Despite some incremental success in promoting international standards in the fight against terrorism, this thesis illustrates that the Security Council has not succeeded in introducing a new viable form of law-making. The Security Council’s authority to exercise such a function is now under serious doubt and its legitimacy questioned, as its normative resolutions were improperly initiated and adopted under the influence of a Permanent Member of the Security Council. Furthermore, the Security Council’s intervention in areas that are already highly regulated runs the risk of contributing to the fragmentation of international law—a phenomenon that undermines the coherence of international law. Currently, the Council’s normative resolutions are facing serious challenges at the implementation stage and several proceedings before national and regional courts have either directly challenged the normative resolutions, or questioned their enforceability. The Security Council is under continued pressure to further revise its practice or potentially face additional challenges before national, regional, and even international courts which may annul or quash relevant implementing measures. Thus, in light of relevant State practice, it is almost inconceivable that the Security Council would repeat its use of normative resolutions as a means of law-making in the future. Nevertheless, the increasing powers of the United Nations Security Council also stimulates an increasing demand to hold the United Nations accountable for the possible wrongful acts of its principal organ, particularly when its decisions harm individuals. It is argued that in the absence of a compulsory judicial mechanism at the international level, non-compliance with the Council’s decisions is the only viable way to challenge the Security Council wrongful acts. Yet, non-complying State or group of States should clearly identify their actions as countermeasures vis-a-vis ultra vires acts of Security Council and seek support from other like-minded States to avoid being declared recalcitrant, which may be followed by Security Council sanctions.