JournalTOCs

Utrecht Journal of International and European Law
Number of Followers: 17

This is an Open Access Journal

Open Access journal
ISSN (Online) 2053-5341
Published by Ubiquity Press Limited

[49 journals]

Developments in International and European Law
- Abstract: Published on 2020-12-14 11:59:00
Legal Consequences of The Separation of the Chagos Archipelago from
Mauritius in 1965 (ICJ Advisory Opinion, 25 February 2019, General List
No. 169)
- Abstract: On 25 February 2019 the International Court of Justice (ICJ or the Court) issued its advisory opinion on legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The request for the advisory opinion was made by the United Nations General Assembly (UNGA) through its Resolution 71/292. The Resolution adopted on 22 June 2017 with 94 votes in favor, 15 against and 65 abstantions. The Court held unanimously that it has jurisdiction to give the advisory opinion as requested and by 13 votes to one decided that the detachment of the Chagos Archipelago immediately before the final stage of decolonization was wrongful thus violating international law and specifically the right to self-determination. Inter alia the court was of the opinion that the agreement between the United Kingdom of Great Britain and Northern Ireland (United Kingdom) and Mauritius concluded in 1965 leaving Chagos Archipelago under administration of United Kingdom after completion of decolonization was flawed because it lacked the free expression of the will of the people on the side of Mauritius. Therefore according to the Court the United Kingdom is obliged to bring to an end its administration over Chagos Archipelago as rapidly as possible and that all members states are obliged to cooperate in the process. Eight judges presented their declarations among whom two presented a joint declaration, four judges presented separate opinions and one of the judges presented a dissenting opinion at the end of the proceedings. Thirty three states have submitted written statements. In addition the African Union organization was allowed to submit written statement. Eleven state have submitted comments related to written statements and 23 states have presented their oral argument before the ICJ. The Chagos Archipelago is located in the Indian Ocean about 500 km from the Maldives archipelago. Published on 2020-11-09 11:53:19
The Illegality of Humanitarian Intervention: The Case of the UK’s Legal
Position Concerning the 2018 Strikes in Syria
- Abstract: The aim of the article is to examine the legal position presented by the UK after the 2018 airstrikes in Syria, both from the perspective of the legality of humanitarian intervention as well as the criteria employed with regard to a humanitarian intervention in the doctrine of international law. The thesis underlying this paper is that humanitarian intervention is illegal under contemporary international law, since neither the UN Charter nor customary norms allow for a humanitarian intervention, and the UK’s legal position and the reaction thereto do not change this state of the law. The paper is divided into two parts. The first part examines the UK’s 2018 legal position in the light of international law, while the second part analyses the humanitarian intervention as invoked by the UK from the standpoint of two criteria of humanitarian intervention presented in the legal doctrine, that is, the reason behind the intervention and its goals. Published on 2020-09-30 09:38:15
The Elusive Contours of Constitutional Identity: Taricco as a
Missed Opportunity
- Abstract: The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways. Published on 2020-09-23 11:06:35
Should Forced Marriages be Categorised as ‘Sexual Slavery’ or ‘Other
Inhumane Acts’ in International Criminal Law'
- Abstract: Gender-based crimes occur to this day in armed conflicts across the globe. Forced marriages were rife in Sierra Leone, Cambodia, and Uganda, and a debate has emerged as to how they should be categorised in international criminal law (ICL). The main question this paper examines is: should forced marriages be categorised as ‘sexual slavery’ or ‘other inhumane acts’ in ICL' The principle of nullum crimen sine lege (the NCSL principle), is used as a tool by which judgments from international criminal tribunals and the ICC can be objectively assessed. Judges have generally held that it is more appropriate, in line with the NCSL principle, to categorise forced marriages as ‘other inhumane acts’. However, the paper finds that they are relying on authorities which are competent in an international human rights law (IHRL) context, but are not directly transferrable to ICL. The paper illuminates the broader debate between certainty and development in ICL and demonstrates how the tribunals and the ICC have attempted to strike a balance in cases involving forced marriages. It seeks to provide a solution which ensures that perpetrators of forced marriages in armed conflict are convicted and justice is served and respects both certainty and IHRL. Published on 2020-09-23 10:51:57
Developments in the Protection of the Citizens’ Rights Under
International and European Law
- Abstract: Published on 2018-11-22 17:33:03
The Identification of Customary Rules in International Criminal Law
- Abstract: This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law. For this purpose, this paper briefly touches upon debates regarding customary law as a source and an interpretative aid of international criminal law. It then critically studies the identification methodology of customary law to seek whether a new approach deviating from the classic two-element (State practice and opinio juris) approach is emerging in academia. It also recapitulates some cases of international criminal tribunals to ascertain whether these tribunals have formed a distinct method for custom identification. Finally, it explores the unique characteristics and difficulties in identifying customary rules in international criminal law. It concludes that a different method has not been developed in academia or adopted by tribunals in practice to identify customary rules in international criminal law. The two-element approach still serves as guidance for custom-identification in general, but a flexible application of it is acceptable in specific cases. International practitioners should be cautious in the identification of customary rules in international criminal law, so as to prosecute and punish suspects of international crimes without endangering the principle of legality. Published on 2018-11-22 17:27:36
A Bundle of Bundles of Rights – International Treaties Regarding
Migration in the Light of the Theory of Property Rights
- Abstract: A growing body of literature has recently discussed the access of migrants to property rights over assets as a requirement for the protection of their human rights and basic interests. Little attention has been paid, however, to the fact that the right to decide over an individual’s migration to a given place is itself a property right. This paper aims to close this gap by describing international treaties regarding migration as mechanisms to transfer bundles of such property rights. This approach embarks to compare the distributional effects of different treaties regarding migration. It also aims to demonstrate that such treaties often do not limit themselves to transactions of property rights among States, but are capable of transferring property rights from States to individuals. A property rights approach highlights that the exclusion of would-be immigrants from would-be receiving countries means to impose a (negative) external effect on them and their country of origin. A review of different types of treaties demonstrates the tendency in all of these treaties to internalise such external effects. The paper thus predicts that the prevention of migration will get more expensive as the external effects of this activity will have to be internalised to a growing degree. Published on 2018-11-22 17:24:05
Health Rights Impacts by Agrochemical Business: Legally Challenging the
“Myth of Safe Use”
- Abstract: The past decades have seen enormous growth in the agrochemical industry. Its pesticides and fertilisers promise to farmers worldwide an increase in yields and a decrease in labour input. The expansion of the pesticides industry results in tremendous costs to others – in the form of chronic illness, acute injuries, and environmental degradation. Such costs are borne disproportionately by farm and plantation workers in the Global South due to a perilous combination of weak regulation, lack of training and access to information, and meager resources for protective equipment. Agrochemical companies continue to claim that their products are safe when used correctly by farmers and regulated effectively by the state. Advocates have attempted to use litigation as a recourse for challenging the agrochemical industry. Civil litigation against pesticides manufacturers can directly address the injuries suffered from pesticide poisoning, but such lawsuits face a number of challenges and all too often leave workers and farmers without access to an effective remedy. This article explores the potential of complementary litigation which challenges the harmful sales practices of pesticide companies, as well as the precautionary principle, as an alternative to protect pesticide users against hazards. Published on 2018-11-22 17:18:39
Protection of Civilians: A NATO Perspective
- Abstract: On the occasion of the 2016 Warsaw Summit, the North Atlantic Treaty Organization (NATO) Allied Nations endorsed the NATO Policy on the Protection of Civilians, which was developed with NATO Partners and in consultation with the United Nations and other international organisations. This Policy is further bolstered by Allies’ pledge to implement a concrete Action Plan, which will be reviewed regularly by the Council. The added value of the Policy does not lie in the novelty of any particular aspect of its content as such, rather, in its overarching and comprehensive character. Its guiding principles include that all NATO and NATO-led operations, missions and activities are conducted in accordance with applicable international law, which may include international humanitarian law (IHL) and international human rights law (IHRL). The Policy is not limited to either the law of armed conflict or times of peace alone: this promises to facilitate its application to peace-time activities as well, and leaves sufficient room for a context-sensitive approach. More so, it recognises that long-term, self-sustained peace, security and stability is best achieved in cooperation with, among other actors, civil society, such as relevant human rights organisations. This article seeks to describe this landmark achievement from a number of perspectives, focusing primarily on legal aspects relating to the Policy. It will review (i) its scope and extent in terms of operational aspects, (ii) possible measures, (iii) beneficiaries and context and, finally, (iv) several aspects pertaining to its human rights dimension that will continue to be integrated in NATO’s current and future operations, missions and activities, including the on-going Resolute Support Mission in Afghanistan. Published on 2018-11-22 17:07:08