The thesis concerns a theoretical and doctrinal study of the justification of extraterritorial human rights obligations of states. It uses the search and rescue of migrants at sea as a case study... Show moreThe thesis concerns a theoretical and doctrinal study of the justification of extraterritorial human rights obligations of states. It uses the search and rescue of migrants at sea as a case study to explore how power and causal relations inform the justification of relations of duty under human rights law compared to and in light of obligations arising under the international law of the sea. Show less
Labour exploitation of migrants is a serious problem worldwide, also in Europe and in the Netherlands. Since the entry into force of the Palermo Protocol (2000), labour exploitation has been... Show moreLabour exploitation of migrants is a serious problem worldwide, also in Europe and in the Netherlands. Since the entry into force of the Palermo Protocol (2000), labour exploitation has been regarded as a form of the criminal offense of human trafficking. This means that the approach is largely aimed at the most serious forms of exploitation and at criminal prosecution of the perpetrators. The legal position of the victims is subordinate to the criminal proceedings. This study focuses on the rights of migrants to protection against labour exploitation; in the EU and in the Netherlands in particular. Labour exploitation is herein defined as a violation of labour standards laid down in different jurisdictions. Based on an analysis of human rights, criminal law, the right to free movement of persons and migration law for third country nationals, how protection is offered to migrants against labour exploitation. The research identifies the rights that migrants can derive from these four jurisdictions and analyses how access to these rights are facilitated by the state. Due to this combination of aspects, this study contributes to increasing insight into migrant's rights to protection against labour exploitation by the state. Show less
The concept ‘voluntary return’ is a crucial but often poorly understood part of the procedure for the return of irregularly staying third-country nationals from EU member states, as set out in... Show moreThe concept ‘voluntary return’ is a crucial but often poorly understood part of the procedure for the return of irregularly staying third-country nationals from EU member states, as set out in Directive 2008/115 (the Returns Directive). Through this concept, member states allocate primary responsibility for the return process to individuals. This individual responsibility, however, is only vaguely defined in the Directive, creating the risk that it is used by member states in an almost entirely open-ended and limitless manner, with potentially far-reaching consequences for third-country nationals, including their fundamental rights. This dissertation seeks to clarify the limits of this individual responsibility arising out of the concept of voluntary return in the Directive. It does soby unpacking the two component parts of voluntary return: the obligation to return and the voluntary departure period. This analysis draws on a triangle model that brings into focus the three legal relationships thattogether determine the framework for voluntary return: the individual and the EU member state, the individual and the country of return, and the country of return and the EU member state. The analysis results in the identification of 25 guidelines setting out concrete limits on individual responsibility for voluntary return. Show less
Collective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That... Show moreCollective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That identity can also be altered by attacking culture’s intangible in isolation (prohibition of spiritual practice). The research determines the extent to which international adjudicatory mechanisms have considered the causes, means and consequences of intentionally attacking culture’s tangible and intangible components. The research then brings their separate practice together. Based on treaty law, culture will be placed in a legal mould. Culture can be anthropical or natural, movable or immovable, secular or religious, tangible or intangible, regardless of terminology (cultural property, cultural heritage, intangible or tangible cultural heritage). Culture will then be placed in a judicial mould, in order to consider how natural and legal persons can invoke cultural damage in judicial proceedings. Culture is a legacy-oriented triptych made of local, national and international panels. While each panel makes sense in isolation, they are best understood when viewed together. State responsibility and individual criminal responsibility-based jurisdictions have accepted that attacking culture may be both tangible-centred and heritage-centred in terms of typology of damage. They have further recognised that the victims of such attacks can be natural persons as members of the collective or the collective as the sum of natural persons. But the victims can also be legal persons which may participate in judicial proceedings and seek reparations for harm sustained as a result of damage inflicted to their property (a museum’s building as well as its artefacts). Show less
International environmental treaties and soft law instruments stress international cooperation as a fundamental principle in the governance of natural resources shared by two or more states.... Show moreInternational environmental treaties and soft law instruments stress international cooperation as a fundamental principle in the governance of natural resources shared by two or more states. However, tensions between national interests and the common interests of the states sharing natural resources can make it difficult for states to cooperate. Meanwhile, the sustainable management of the resource in question and the human rights of the populations involved can be affected. This dissertation examines principles of international law applicable to the governance of resources that are significant to the world’s population, that have the potential to be a source of conflict, and whose governance presents problematic aspects. The selected principles are sovereignty, community of interests, common concern of humankind, public participation and sustainable development. The first two chapters focus on transboundary freshwater resources, underground and surface waters respectively. Chapter 3 and Chapter 4 focus on the atmosphere, addressing atmospheric degradation and climate change respectively. Chapter 5 focuses on marine resources beyond national jurisdiction or ‘ocean global commons’. Each chapter identifies problems concerning the selected principles and their application to shared resource governance, puts forward original and cogent arguments to address said problems, and suggests ways in which the principles could contribute to the sustainable governance of shared natural resources. Show less
Are states allowed to prohibit the importation of products made by children? Can foreign investors claim compensation when their host state raises the minimum wage? And could trade and... Show moreAre states allowed to prohibit the importation of products made by children? Can foreign investors claim compensation when their host state raises the minimum wage? And could trade and investment agreements be used to foster decent work, instead of being mere vehicles for economic liberalization? These questions are at the heart of the debate about the interactions between the international legal regimes for trade, investment and labour. This dissertation examines the ways in which international trade and investment law enables and constrains the ability of states to regulate labour. It looks at the effects on domestic labour law, the legality of trade measures responding to ‘unfair’ conditions in exporting countries, and the challenge of fragmentation between the legal framework of the ILO and labour clauses in trade and investment agreements. In addition to analyzing the interactions between the relevant norms, it explains how linkages between international economic law and labour navigate between two notions: fair competition and fundamental rights. This study is agnostic about which of these objectives ought to shape international law, thus allowing a critical examination of the relevant rules of public international law, as well as legal and economic scholarschip. Show less
This thesis examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by the EU agency Frontex. Imagine,... Show moreThis thesis examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by the EU agency Frontex. Imagine, for example, that during a border control operation at sea, a vessel forces a boat carrying migrants back to its place of origin, which may be in violation of the rights of persons on that boat. The operation is hosted by State A, coordinated and financed by Frontex, but the vessel in question is from State B. The contributions by State A, B, and by Frontex to the violation vary in nature and degree. But which contribution leads to legal responsibility? The thesis concludes that direct responsibility typically lies with the host state. In addition, participating states who contribute large assets and Frontex will often incur responsibility together with the host state, predominantly on the basis of their obligations to protect or supervise. However, the study also exposes just how difficult it may be for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU’s external borders. This casts doubts on whether the current legal framework offers them an effective remedy. Show less
Seven decades since its recognition in the preamble to the Constitution of the World Health Organization (1946), the right to health has increasingly attained a prominent position in human rights... Show moreSeven decades since its recognition in the preamble to the Constitution of the World Health Organization (1946), the right to health has increasingly attained a prominent position in human rights law. Nevertheless, worldwide people, especially those most in need, face serious impediments when it comes to the enjoyment of their right to health. Therefore, despite the absence of worldwide consensus as to its meaning and its various aspects, we need to move from the conception and recognition of the right to health to its actual realization, namely beyond the international formulation of the right to health. This requires a better understanding of the State measures required with the aim of bringing the right to health closer to national realities (e.g., economic austerity etc.)and in the daily lives of individuals. Τhis research aims to examine the national implementation of the right to health and particularly the Greek context as it relates to the right to health. For this reason, the main questions that are analyzed: i. What primary standards derive from the right to health on the basis of human rights law? and ii. Is the right to health being (effectively) implemented in Greece (or not)? Show less
Within the framework of social law, the position of temporary agency work has always been a source of some debate. There is an area of tension between the aim for more flexible types of labour on... Show moreWithin the framework of social law, the position of temporary agency work has always been a source of some debate. There is an area of tension between the aim for more flexible types of labour on the one hand and maintaining decent labour relations on the other. For that reason the ILO has engaged in private labour intermediation ever since it was founded. While there was a tendency to forbid, or at least restrict private intermediation in the early years, gradually it became more accepted that, among others, temporary agency work had its merits and that a total ban was useless. In 1997, this culminated in ILO-convention 181, which received wide support. This did not put a stop to the discussion about non-standard types of paid employment. Which types of labour can be considered decent? How do they relate to the human rights? What are the effects of globalisation? At the European level, too, close attention was paid to (for instance, cross-border) temporary agency work. Lastly, the Netherlands itself has it own unique type of public-private regulation. The starting point is the question whether Convention 181 still has value. What are the developments in the social domain with regard to temporary agency work? How do they relate to the various types of flexible labour that are gradually catching up with temporary agency work? The fact that Convention 181 features among the most ratified ILO conventions that have been effected since 1990 makes clear that it is clearly meeting a need. While Convention 181 has met with policy competition from developments such as: decent-isation, human rightification, IFA-isation and Europeanisation, they have not affected its value. Convention 181 advances decent flexibility and fights informal labour and human trafficking. Show less
This dissertation explores the relationship between autonomous weapon systems, the concept of human dignity, and international law. The thesis focuses on four branches of international law ... Show moreThis dissertation explores the relationship between autonomous weapon systems, the concept of human dignity, and international law. The thesis focuses on four branches of international law (international humanitarian law, human rights law, criminal law and the law of state reponsibility) and discusses whether autonomous weapon systems can be used in compliance with these bodies of law. The foundational notion of human dignity in international law provides a theoretical framework for the research and writing. The thesis argues that there are certain kinds of decision-making responsibilities that humans should not delegate to autonomous machines. More specifically, it argues that the transfer of decisions involving complex (and often contradictory) values to artificial intelligence software violates human dignity and, therefore, international law. Nevertheless, as the speed of autonomous weapon systems increases, the opportunities for human involvement and intervention in such decisions will inevitably decrease. Thus, to preserve the principle of human dignity (and ultimately international law), autonomous weapons should have a ‘co-active’ design that ensures teamwork and interdependence between humans and the computer software that directs these weapons. Show less
Consumers have many possibilities to undergo a form of screening to acquire health information via the Internet or otherwise by purchasing health checks, medical check-ups, total body scans and... Show moreConsumers have many possibilities to undergo a form of screening to acquire health information via the Internet or otherwise by purchasing health checks, medical check-ups, total body scans and direct-to-consumer (DTC) genetic tests. More and more providers place screenings on the market before they have been assessed properly. In the Netherlands the Act on population screening ( __Wet op het bevolkingsonderzoek__) sets strict quality criteria for screening. In accordance with this Act a licence is required for offering and performing screening with ionising radiation or for detecting (risk factors of) cancer and untreatable diseases. This system, which aims to protect individuals against health damage and also to ensure patients (rights), wards off __commercial screening__ of the Dutch market. In society this meets with criticism. Individuals increasingly perceive the limited access to screening as an unnecessary restriction of their self-determination. However, the Dutch State has a special responsibility regarding the health of individuals. This thesis focuses on the following central question: __What are the normative criteria for the access to and supply of genetic screening from constitutional and European law perspectives?__ As a corollary the author will explore what this means for the Dutch legal framework regulating genetic screening, particularly DTC genetic tests. Show less
The thesis analyses international law and practice in relation to terrorism and counter-terrorism in the post 9/11 environment. It finds terrorism to be a term of acute and wide-ranging political... Show moreThe thesis analyses international law and practice in relation to terrorism and counter-terrorism in the post 9/11 environment. It finds terrorism to be a term of acute and wide-ranging political significance yet one which is not defined under generally accepted treaty or customary international law. Despite this, a detailed international legal framework existed before 9/11 but has been supplemented since then, that provide the parameters for state responses to international terrorism. The thesis explores the proliferation of counter-terrorism practice on national, regional and international levels since 9/11 alongside this framework. Many particular responses and the legal issues they give rise to are explored, including Guantanamo and other examples of arbitrary detention, extraordinary renditions, targeted killings, terrorism trials, the erosion of safeguards against torture, sanctions regimes, surveillance pr actices, the prohibition on ‘association’ and the increasingly ‘preventive’ role of criminal law. It is suggested that this practice does not reveal seismic Grotian moments of international legal transformation, gaping holes in international protection or the need for new law. It does however reveal certain characteristics as regards the approach to the legal framework, which include extreme selectivity of application, a spreading ‘exceptionalism,’ distorted ‘purposive’ legal interpretations, excessive secrecy, arbitrariness and a lack of accountability. Evolving international reactions, including judicial reactions, have been and will continue to be critical to the ultimate impact of the ‘war on terror’ on international standards. The study questions the long term implications of the ‘war on terror’ for states and individuals responsible, for third states and for the international rule of law Show less
Het komt in Nederland gelukkig niet vaak voor maar soms is wetgeving in strijd met mensenrechten. Burgers kunnen deze schending in Nederland bij de rechter aan de orde stellen. Wat kan de rechter... Show moreHet komt in Nederland gelukkig niet vaak voor maar soms is wetgeving in strijd met mensenrechten. Burgers kunnen deze schending in Nederland bij de rechter aan de orde stellen. Wat kan de rechter doen als hij hen gelijk geeft? Over wat voor gereedschap beschikt de Nederlandse rechter? En gebeurt het ook weleens dat de rechter helemaal niets doet? Die vragen staan centraal in dit boek. Het geeft een uitgebreid overzicht van de constitutionele remedies in de gereedschapskist van de rechter. Het gaat vervolgens in op het gebruik van de rechter om weliswaar vast te stellen dat wetgeving in strijd is met mensenrechten, maar daaraan geen gevolgen te verbinden omdat daarmee ‘de grenzen van de rechtsvormende taak van de rechter zouden worden overschreden’. De rechter vindt het oplossen van de mensenrechtenschending dan een zaak van de politiek. Kan hij dat eigenlijk wel doen? Ubi ius ibi remedium: waar recht is, moet toch ook een remedie zijn? En doen rechters in andere landen dat ook? Het boek bevat een analyse van de eisen die het Europese recht stelt, en een rechtsvergelijking met de constitutionele stelsels in Duitsland, het Verenigd Koninkrijk en Canada Show less
The book The United Nations, the Evolution of Global Values and International Law by Otto Spijkers describes how moral values have determined the founding of the United Nations Organization in 1945... Show moreThe book The United Nations, the Evolution of Global Values and International Law by Otto Spijkers describes how moral values have determined the founding of the United Nations Organization in 1945 and the evolution of its purposes, principles and policies since then. A detailed examination of the proceedings of the United Nations Conference on International Organization in San Francisco demonstrates that the drafting of the United Nations Charter was significantly influenced by global moral values, i.e. globally shared beliefs distinguishing right from wrong, good from bad, and the current from a preferable state-of-the-world. A common desire to eradicate war, poverty, inhuman treatment, and to halt the exploitation of peoples, has led to an affirmation of the values of peace and security, social progress and development, human dignity and the self-determination of all peoples. All these values ended up in the UN Charter. The book further analyzes how the United Nations, and especially its General Assembly, has continued to influence the maturing of global morality through contributions to the values-debate, and to the translation of these values into the language of international law, including the law on the use of force, sustainable development, human rights and the right to self-determination. Show less
The book focuses on the legal implications of external mechanisms of migration control for the protection of refugees and irregular migrants. It defends the thesis that when European states... Show moreThe book focuses on the legal implications of external mechanisms of migration control for the protection of refugees and irregular migrants. It defends the thesis that when European states endeavor to control the movement of migrants outside their territories, they remain responsible under international law for upholding the rights of refugees and more general human rights. The book explores how refugee and human rights law responds to a phenomenon whereby states engage in external activity and seek cooperation with other actors in the context of migration control; how EU law governs and constrains the various types of pre-border migration enforcement employed by the Member States of the European Union; and examines the conformity with international law of current and unfolding practices of external migration control. Show less
Enhanced cooperation in police and judicial matters within the EU gives rise to instances in which several Member States are liable to prosecute the same subject in respect of the same act. Within... Show moreEnhanced cooperation in police and judicial matters within the EU gives rise to instances in which several Member States are liable to prosecute the same subject in respect of the same act. Within the common judicial area that is developing in the EU, a uniform ‘European’ ne bis in idem rule is a necessary instrument for the regulation of transnational justice. However, several differently worded ne bis in idem provisions are found in a number of instruments which exist within the framework of the Council of Europe or within that of the EU. The differences between these provisions could lead to confusion and conflict, potentially jeopardizing the uniform application of the ne bis in idem principle in EU law. The purpose of this study is to further clarify the substance, scope and interpretation of ne bis in idem as a single, autonomous principle within the legal order of the EU, by way of a conceptual and jurisprudential analysis. Particular attention is given to those areas of Community and EU law in which the application of the ne bis in idem principle is of particular relevance: the law of the Third Pillar of the EU and EC competition law. Show less
Every year, millions of people are seeking protection from countries other than their own for fear of being tortured, persecuted or killed. Finding protection is not easy. States are closely... Show moreEvery year, millions of people are seeking protection from countries other than their own for fear of being tortured, persecuted or killed. Finding protection is not easy. States are closely guarding their borders, making it difficult for aliens to seek and enjoy protection from serious harm. No matter where they are or why they flee, people seeking international protection are vulnerable and insecure; in dire need of knowing, understanding and receiving their rights. This book explores the basic right of every forcibly displaced person to be protected from refoulement. The prohibition of refoulement is the cornerstone of international refugee and asylum law and aims to provide protection to people at risk of persecution, torture, inhuman treatment or other human rights violations upon return to their own country. This book provides a comprehensive legal analysis of prohibitions of refoulement contained in four human rights treaties: the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture. The emphasis of the analysis is on the international meaning of the prohibitions of refoulement and on the responsibilities of States deriving from these prohibitions. The four treaties are analysed in separate chapters. The final chapter compares the prohibitions of refoulement contained in the four investigated treaties. This book will be an important resource for legal scholars, students and practitioners working with asylum seekers and refugees throughout the world. It is also a reminder for States, which have obliged themselves to protect people from becoming victims of unspeakable atrocities. Show less
Individuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained... Show moreIndividuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained by the United States in Guantanamo Bay have been unable to improve their situation themselves. Their state of nationality however can protect them through the exercise of diplomatic protection, thereby invoking the international responsibility of the host state for a violation of international law. This mechanism has been subject to debate and criticism in recent years because of its (alleged) state-centred and its discretionary nature. Through an analysis of the nature of diplomatic protection, in particular the legal fiction, the modalities of its exercise and its relation to the general law of state responsibility, and its application in international and national practice the position of diplomatic protection in current international law is defined and the question of whether it is an appropriate mechanism for the protection of individual (human) rights is answered positively. Resort to this mechanisms by states should be encouraged in order to increase protection against violations of individual (human) rights.Individuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained by the United States in Guantanamo Bay have been unable to improve their situation themselves. Their state of nationality however can protect them through the exercise of diplomatic protection, thereby invoking the international responsibility of the host state for a violation of international law. This mechanism has been subject to debate and criticism in recent years because of its (alleged) state-centred and its discretionary nature. Through an analysis of the nature of diplomatic protection, in particular the legal fiction, the modalities of its exercise and its relation to the general law of state responsibility, and its application in international and national practice the position of diplomatic protection in current international law is defined and the question of whether it is an appropriate mechanism for the protection of individual (human) rights is answered positively. Resort to this mechanisms by states should be encouraged in order to increase protection against violations of individual (human) rights. Show less
In a time of terrorist attacks and other crises, governments are faced with the question how to protect the population and the national security. Many states tend to use instruments and take... Show moreIn a time of terrorist attacks and other crises, governments are faced with the question how to protect the population and the national security. Many states tend to use instruments and take measures that infringe upon human rights and individual freedoms in order to protect national security. At the same time, UN Security Council resolutions stress that the 'fight against tarrorism' should take place within the borders set by the rule of law, by international human rights treaties and international humanitarian law. Next to that, international human rights contain a certain 'positive obligation' for states to adequately protect national security and the right to life of the population against terrorist attacks. Therefore, there is a tense and also complicated relation between human rights and national security. The question arises whether there is a way to secure that human rights and national security are compatible entities. This study analyses the relevant articles from human rights treaties and the jurisprudence of international monitoring organs (European Court of Human Rights/UN Human Rights Committee) in order to find out whether international law leaves room for states to limit or even derogate human rights in states of emergency or other situations that threaten national security. The study shows that international law indeed does leave some room, but only limited. In very serious crises that amount to a public emergency threatening the life of the nation, states may derogate from the ordinary level of human right protection, but even during such serious crisis situations there is no 'carte blanche' for states to take any measures they deem necessary. Certain human rights are given absolute protection, even in crisis situations, and emergency measures that interfere with non-absolute human rights should pass a test of strict necessity and proportionality. In this field new norms and concepts have been developed during the last decades. It is, however, clear that the international monitoring of human rights protection during states of emergency and other severe crises needs improvement. Show less
