The Fusion of International and Domestic Law in a
Keywords: death penalty; capital cases; discrimination litigation; standard of proof; fair trial
and equality protection; postconict justice and transition; Islamic law;
humanitarian law; international human rights law; extremism, political violence, Islamism;
freedom of expression; terrorism, extremism, counter-terrorism, counter-extremism; Article 19
International Covenant on Civil and Political Rights; Abuse of rights; Directive 2004/38; Court
of Justice of the European Union;
Marshall Islands Cases
ICJ; Electronic waste; sustainable
development; WTO, GATT, TBT Agreement
It is my great pleasure to introduce the 85th issue of the Utrecht Journal of International and European
Law (UJIEL) filled with thought-provoking, original and timely contributions. One of the themes that links
the articles from many different legal fields, and which is something the readers might find particularly
interesting, is the issue of the developed/developing states’ divide. This General Issue highlights the uni-
versal nature of some of the struggles (for instance terrorism or environmental problems) and helps us
realise that to be effective the legal solutions must be similarly universal and not solely Western law-focused.
The authors in turn develop innovative legal solutions on how to tackle such problems as discrimination,
extremism and many others.
The first two articles show us how domestic law can be improved with the aid of international law and
vice versa. Gregor Mauˇcec shows that the domestic standard of proof with regards to discrimination in
death penalty cases could be improved with the aid of EU guidelines and decisions of the international
treaty bodies. The authors of the second article show how Islamic legal norms could aid the legal systems in
contemporary conflict settings. Articles three and four discuss the very important issue of restriction of
rights. The fifth article proposes how developing countries could legally resolve the issue of the import of
electronic waste by developed countries, by using international law.
Gregor Mauˇcec outlines the main problems and concerns with proving discrimination in capital cases. In
his article entitled ‘Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard
of Proof’ the author shows that some death penalty jurisdictions pursue inappropriate standards of proof
when it comes to proving discrimination in capital cases. Deciding capital cases where the defendant’s life
is at stake should meet much higher non-discrimination standards than the current status quo. Since capital
punishment is irrevocable, it requires a greater degree of scrutiny than other punishments.1 Gregor Mauˇcec
looks into both national case law and international instruments, including the International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All
in search of ‘the minimum core content’ of the evidentiary standard for proving discrimination in death
penalty cases.2 Gregor Mauˇcec suggests that the legal standard for proving discrimination should draw its
* Editor-in-Chief, Utrecht Journal of International and European Law, Utrecht University, NL.
1 Gregor Mauˇc ec, ‘Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard of Proof’ (2017) 33(85)
Utrecht Journal of International and European Law, 5–37.