Utrecht Journal of International and European Law
- Utrecht Journal of International and European Law
- Publication date:
- Nbr. 35-1, September 2020
- Nbr. 34-2, November 2018
- Nbr. 34-1, June 2018
- Nbr. 33-2, August 2017
- Nbr. 33-1, April 2017
- Nbr. 32-2, September 2016
- Nbr. 32-1, April 2016
- Nbr. 31-2, August 2015
- Nbr. 31-1, February 2015
- Nbr. 30-2, August 2014
- Nbr. 30-1, February 2014
- Nbr. 29-2, July 2013
- Nbr. 29-1, January 2013
- Nbr. 28-2, June 2012
- Nbr. 28-1, February 2012
- Nbr. 27-2, June 2011
- Nbr. 27-1, February 2011
- Nbr. 26-1, August 2010
- The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity
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. Keywords: Primacy of EU Law; Constitutional Identity of the Member States; Court of Justice of the European Union; Italian Constitutional Court; Fundamental Rights; Judicial Dialogue; Rule of Law
- The Illegality of Humanitarian Intervention: The Case of the UK's Legal Position Concerning the 2018 Strikes in Syria
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. Keywords: use of force; humanitarian intervention; Syria; United Kingdom; chemical weapons
- Should Forced Marriages be Categorised as 'Sexual Slavery' or 'Other Inhumane Acts' in International Criminal Law?
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. Keywords: Sexual slavery; Other inhumane acts; Principle of legality; International Criminal Law; Forced marriage; Gender-based crimes; International Criminal Court; Crimes against Humanity
- Developments in the Protection of the Citizens' Rights Under International and European Law
International Customary Law; International Criminal Law; Law of Treaties; International Treaties; Property Rights; Migration Law; European Union; International Court of Justice; Law of the Sea; Health Rights; Human Rights; International Human Rights Law; International Humanitarian Law; Agrochemical Business; Global South; Civil Litigation; Public Litigation; NATO; Protection of Civilians; International Organisations; Human Rights Bodies; Criminal Law; Single Supervision Mechanism; Court of Justice of the European Union; European Central Bank; National Competent Authorities
- The Identification of Customary Rules in International Criminal Law
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. Keywords: State practice; opinio juris; custom; identification; international criminal law
- A Bundle of Bundles of Rights - International Treaties Regarding Migration in the Light of the Theory of Property Rights
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 wouldbe 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. Keywords: International Migration Governance; International Treaties; Theory of Property Rights; Internalisation; Non-standard agreements
- Health Rights Impacts by Agrochemical Business: Legally Challenging the 'Myth of Safe Use'
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. Keywords: accountability; agribusiness; litigation; pesticide poisoning; personal injury; precautionary principle; right to health
- Protection of Civilians: A NATO Perspective
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. Keywords: Protection of Civilians; Human Rights; NATO; Afghanistan; Resolute Support
- Awakening the Leviathan through Human Rights Law - How Human Rights Bodies Trigger the Application of Criminal Law
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. Keywords: Human Rights Law; Criminal Law; Positive Obligations; European Court of Human Rights; Inter-American Court of Human Rights; United Nation Human Rights Committee
- Accountability Gaps in the Single Supervisory Mechanism (SSM) Framework
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. Keywords: ECB; Single Supervisory Mechanism; accountability; banking supervision
- The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity
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....
- It's not the Fish that Stinks! EU Trade Relations with Morocco under the Scrutiny of the General Court of the European Union
The EU's international agreements with Morocco on trade in agricultural and fishery products have drawn criticism due to their application to the disputed territory of Western Sahara, a territory that remains on the list of non-self-governing territories to be decolonised in accordance with the...
- Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games: Rethinking the Voluntary Approach to Corporate Social Responsibility
Multi-national enterprises (MNEs) have provided substantial sponsorship for the Sochi Winter Olympic Games despite a host-country government that has recently enacted stunningly harsh legislation aimed at the Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) communities within Russia. This...
- The Right to Privacy under Fire - Foreign Surveillance under the NSA and the GCHQ and Its Compatibility with Art. 17 ICCPR and Art. 8 ECHR
The recent exposure of the NSA documents has raised a great deal of concerns with regards to the effective control of companies that cooperate with intelligence agencies. It also exposed a network of secret government spying partnerships used to go around existing domestic guarantees and to spy on...
- Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard of Proof
In spite of some early judicial, political and scholarly discussions, as well as more recent scientific explorations of the topic, problems and concerns with proving discrimination in individual capital cases continue to be among the most debatable issues in human rights and criminal justice. In...
- The Promotion and Integration of Human Rights in EU External Trade Relations
The European Union (EU) has made the upholding of human rights an integral part of its external trade relations and requires that all trade, cooperation, partnership and association agreements with third countries, including unilateral trade instruments, contain with varying modalities and...
- The Leap from Theory to Practice: Snapshot of Women's Rights Through a Legal Lens
Globally, at least one in three women will be beaten, coerced into sex or otherwise abused by an intimate partner over the course of her lifetime. It can be argued that the perpetuation of violence against women is a result of the failure to provide equality under international law and to protect...
- Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition
This essay is one of the first collaborative efforts to identify the underlying norms embedded in diverse traditions of Islamic law as these apply to contemporary Muslim communities experiencing conflict or transitioning from conflict. This long overdue endeavor draws upon comparative legal...
- When Does a Child 'Participate Actively in Hostilities' under the Rome Statute? Protecting Children from Use in Hostilities after Lubanga
This paper explores the scope of activities children may engage in for a defendant to be convicted for using them to participate in hostilities under the Statute of the International Criminal Court (ICC). It analyses the relevant international law provisions and the ICC's decisions in the Lubanga...
- The Identification of Customary Rules in International Criminal Law
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...