JournalTOCs

Utrecht Journal of International and European Law
Number of Followers: 18

This is an Open Access Journal

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

[48 journals]

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
Awakening the Leviathan through Human Rights Law – How Human Rights
Bodies Trigger the Application of Criminal Law
- Abstract: This article analyses the role that human rights bodies play in triggering the application of criminal law. By examining the jurisprudence of the Inter-American Court of Human Rights, the European Court of Human Rights, the UN Human Rights Committee, as well as other human rights bodies, the article discusses how these institutions have started imposing on states positive obligations to criminalise, prosecute and punish serious human rights violations. While criminal law has traditionally been seen as a threat to fundamental rights, human rights bodies have contributed to presenting criminal law in a positive vein, as an essential instrument of human rights protection. The mainstream of the human rights movement has largely lauded the trend. This article challenges this view, by presenting the pitfalls of using human rights law to extend the reach of criminal justice in order to ensure that perpetrators are held accountable. Not only the imposition of duties to criminalise and punish ends up restricting the accused’s fundamental rights and neglecting the conceptualisation of criminal law as ultima ratio, but the invocation of criminal-law enforcement might also contribute to enhancing the coercive power of the state and, therefore, make state abuses more likely. Published on 2018-11-22 16:56:56
Accountability Gaps in the Single Supervisory Mechanism (SSM) Framework
- Abstract: The first judgement of the General Court (EU) pertaining to the Single Supervision Mechanism (SSM) raised an issue concerning the source of the shared supervisory powers in the system of EU prudential supervision. In the General Court’s view, the SSM Regulation conferred on the European Central Bank (ECB) exclusive powers to carry out specific prudential supervisory tasks vis-à-vis all euro area credit institutions (significant and less significant). At the same time, the ECB’s national counterparts assist the former in implementing its supervisory tasks vis-à-vis less significant credit institutions. We argue that such a scheme requires a clear accountability relationship also between the ECB and the national competent authorities (NCAs), something that is not fully fledged in the current legal framework. Published on 2018-11-22 16:53:32
The ICJ’s Judgement in Somalia v. Kenya and Its Implications
for the Law of the Sea
- Abstract: By its judgement of 2 February 2017, the International Court of Justice took up jurisdiction to adjudicate the maritime dispute between Somalia and Kenya. Notwithstanding surrounding controversies, the Court set out important rules concerning the law of treaties. The main implication of the judgment is that the Court embraced a more objective definition of treaties and identified the significance of context as well as travaux préparatoires in treaty interpretation. By doing so, the Court further established itself as the default adjudicator in law of the sea disputes unless the reservation to its jurisdiction is sufficiently precise. This case note summarises the facts and analyses the potential ramifications of this judgement on international dispute resolution. Published on 2018-11-22 16:50:12
How to Continue a Meaningful Judicial Dialogue About EU Law' From the
Conditions in the CILFIT Judgment to the Creation of a New European Legal
Culture
- Abstract: The aim of this article is to better understand the conditions outlined in the CILFIT judgment and their role in creating a meaningful dialogue about European Union law. For these purposes two distinct views on the relation between language and meaning are utilised, as has been argued for by Ludwig Wittgenstein in his Philosophical Investigations. In the CILFIT judgment both of these views surface, which imply different challenges to the participants of the EU dialogue. In the conclusion, we suggest how these challenges can be met in order to facilitate a mutually meaningful dialogue about EU law. Published on 2018-08-02 12:41:23
Legal Unity as Political Unity' Carl Schmitt and Hugo Krabbe on the
Catalonian Constitutional Crisis
- Abstract: This article offers an analysis of how theories on constitutional revision can help understand crises that threaten legal unity. The Catalonian crisis represents the case study, and is discussed from the perspective of constitutional theory. The article starts out from a conceptualisation of ‘legal unity’ as the organisational as well as political claim of constitutions to provide unity within a certain legal order, which in the end comes close to the idea of a unified national state. The article refers to the constitutional theories of Carl Schmitt and, the lesser-known Hugo Krabbe, to help increase the understanding of constitutional change and, to connect these insights to the Catalonian case. Schmitt’s claim is that constitutional law is indeterminate and thus in need of the sovereign’s decision. In this analysis, it is made clear that Schmitt’s argumentative scheme in which a distinction is made between friends and enemies in political conflict is unhelpful in addressing the Spanish crisis. Indeed, Schmitt moves beyond descriptive and explanatory goals to defend a normative rejection of liberal political decision-making. By contrast, Krabbe argues for the determinacy of constitutional law. According to Krabbe, constitutional law is finally embedded in ‘legal consciousness’, inherent to all human beings, and which can be determined by majority rule. Even if this answer may not be entirely convincing, it is maintained that this theoretical perspective could nevertheless benefit cases such as the Catalonian constitutional crisis, if as a consequence claims of both the Catalan as well as the Spanish sides based on the idea of ultimate sovereignty over a demarcated territory were dropped. Published on 2018-07-09 10:24:19