This study explores the duty to investigate potential violations of the law during armed conflict, and does so under international humanitarian law (IHL), international human rights law (IHRL), and... Show moreThis study explores the duty to investigate potential violations of the law during armed conflict, and does so under international humanitarian law (IHL), international human rights law (IHRL), and their interplay. Through a meticulous comparative legal analysis, it maps out the scope and contents of investigative obligations. On the basis of general international law, it also develops and applies a step-by-step methodology for resolving issues of interplay between both legal regimes. In doing so, this study clarifies the scope of application and contents of investigative obligations under both legal regimes, as well as for situations to which both apply. The study finds that the oft-heard narrative that to require States to conduct human rights investigations during armed conflict would impose inordinate burdens on them, and would be wholly unrealistic in light of the realities of hostilities, is unfounded and in need of revision.The methodology which this study develops for resolving issues of interplay lends itself to broader application than this research project alone, and can guide future research into issues of interplay. Show less
This is a study on the Dutch private law doctrine of the indivisibility of the security rights pledge (pand) and hypothec (hypotheek). It deals with the roots of this doctrine in roman law, ius... Show moreThis is a study on the Dutch private law doctrine of the indivisibility of the security rights pledge (pand) and hypothec (hypotheek). It deals with the roots of this doctrine in roman law, ius commune and French customary law. Show less
This thesis explores a conception of the EU as a modified confederal system of sovereign member peoples and their states. A confederal conception which demonstrates how, contrary to popular belief... Show moreThis thesis explores a conception of the EU as a modified confederal system of sovereign member peoples and their states. A confederal conception which demonstrates how, contrary to popular belief, European integration does not conflict with sovereignty or democracy. For, properly conceived and constituted, the EU reasserts the sovereignty of the member peoples, and liberates national democracy from the confines of the state.To this end, this thesis reconnects the EU to two classic constructs of constitutional theory: confederalism and sovereignty. Two powerful but unfashionable constructs whose joint potential for European integration remains largely unexplored and undervalued. The primary instrument to explore this potential is comparative. The EU is contrasted with the rather unknown but rich example of the American Articles of Confederation, and their evolution into the now famous American federate system. A comparison with the confederal roots of the United States which is revealing for both confederalism and sovereignty, and illustrates the potential of linking both for a constructive constitutional theory of the EU. A theory which does not have to overcome history and the statal system it has created, but connects with it. A theory, therefore, that may help to recapture the EU and the increasing authority it wields, both in theory and in practise. The thesis is subdivided in three parts. Part I addresses confederalism. It demonstrates how the constitutional system of the EU combines a confederal foundation with a federate superstructure, and explores the particular strengths, weaknesses and limits of this modified confederal system. Part II discusses sovereignty. It first demonstrates how the EU forms a logical confederal evolution of popular sovereignty, and how European integration does not conflict with sovereignty. Subsequently, it shows how the concept of confederal sovereignty equally helps to dispel the presumed conflict between statism and pluralism, how it respects and conciliates national and EU claims to supremacy, and how it allows a confederal evolution of national democracy, which updates democracy to the global reality it is to control. Part III applies the findings of Part I and II to the EMU crisis and the challenge of establishing an effective democratic foundation for the EU at the national level. An application which demonstrates the concrete and attractive contributions a confederal approach can make to addressing some of the core challenges facing the EU. Show less
References to 'balancing' and 'weighing' are ubiquitous in modern constitutional rights adjudication discourse in many Western legal systems. This thesis traces the rise of this form of language to... Show moreReferences to 'balancing' and 'weighing' are ubiquitous in modern constitutional rights adjudication discourse in many Western legal systems. This thesis traces the rise of this form of language to a series of decisions by the German Federal Constitutional Court and the U.S. Supreme Court of the late 1950s and early 1960s and to scholarly debates surrounding these decisions. Based on a detailed study of these historical origins, the thesis develops 'local meanings' of balancing that show striking differences as between jurisdictions. These local meanings are then compared on a conceptual grid derived from the common problematic of managing the relative formality of the legal order. Balancing in the U.S., in this model, is the expression of a skeptical pragmatism, whereas in German law. it is the centrepiece of an aspirational legalism. Understanding these differences is crucial to an evaluation of the legitimizing potential of balancing-based legal reasoning.So, while balancing in the U.S. is mostly seen as a pragmatic solution for when legal doctrinal models break down, German balancing is instead the expression of basic choices pertaining to the foundations of the constitutional legal order as a whole.The range of striking differences found between these meanings counters widely accepted claims as to the convergence of practices of constitutional rights adjudication on a 'balancing model' Show less
