Those who believe – including those who believe divergently and those who disbelieve – can clash in daily life with others who believe or disbelieve differently. They can come into conflict with... Show moreThose who believe – including those who believe divergently and those who disbelieve – can clash in daily life with others who believe or disbelieve differently. They can come into conflict with laws and regulations or with state institutions that disturb, interfere with their lives based on those beliefs. When these conflicts reach the courts, they are adjudicated under the freedom of religion and belief. Sometimes, similar cases lead to different outcomes in different jurisdictions. The notion that judicial interpretation matters for human rights is almost uncontested. This study is interested in the standard interpretations of the freedom of religion and belief by the Supreme Court of Canada, the Constitutional Court of South Africa, and the European Court of Human Rights. From each of these Courts, 15 cases were selected and systematically analyzed to reconstruct the standard interpretations. They have been compared to find similarities and differences, in terms of optimal protection of believers. The study also analyses and compares the standard interpretations from the perspective of Cass Sunstein’s judicial minimalism. The ultimate goal is to find best practices for optimal protection of believers in the judicial interpretation of the freedom of religion and belief and to enable possible judicial borrowing. Show less
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
Over the last 30 years, more than 85 countries have prohibited sexual orientation discrimination in employment. Enacting such legal prohibitions has thereby become the most common form of legal... Show moreOver the last 30 years, more than 85 countries have prohibited sexual orientation discrimination in employment. Enacting such legal prohibitions has thereby become the most common form of legal recognition of homosexual orientation (more so than the decriminalisation of homosexual sex or the opening up of family law to same-sex partners). The trend is global (ten countries in Africa, more in Asia/Oceania, many in Europe and the Americas). The trend is reflected in supranational rules of the European Union and the Organisation of American States and also in decisions of international human rights bodies. On the basis of these numbers and developments, and in light of the various factors that help explain the strength of this global trend, the author argues that it is to be expected that the trend will continue to reach more and more countries. Explicit legal prohibitions of sexual orientation discrimination in employment can play a useful – perhaps central – role amongst other legal, educational, and social strategies aimed at increasing LGB inclusion.This article in the Dutch Journal for Gender Studies (Tijdschrift voor Genderstudies, https://www.aup-online.com/content/journals/13883186) is based on a presentation the author gave at the international conference on LGBTIQ+ Workplace Inclusion (Leiden University, 20-21 May 2021). See also the video recording of this presentation at: https://video.leidenuniv.nl/media/t/1_jiu0iuyw (part 1, 15 minutes) and https://video.leidenuniv.nl/media/t/1_qytk06b6 (part 2, 37 minutes). 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
January 2017 sees the publication of The LawsAndFamilies Database (ed. by Kees Waaldijk et al.). This database is one of the milestones of the larger EU-funded FamiliesAndSocieties research project... Show moreJanuary 2017 sees the publication of The LawsAndFamilies Database (ed. by Kees Waaldijk et al.). This database is one of the milestones of the larger EU-funded FamiliesAndSocieties research project. This new online open-access resource will make it easier to find and compare legal information about marriage, registered partnership and cohabitation in European countries. The database is accessible via www.LawsAndFamilies.eu.The information in the database has been provided by selected legal experts in 21 countries in the European Economic Area (typically two experts per country). In a questionnaire the experts were asked, for some 60 typical legal consequences and formalities of marriage, to what degree and since when these consequences and formalities are now available to same-sex and/or different-sex couples via one or more of three possible legal family formats (marriage, registered partnership, cohabitation). Show less
This Italian version of this article is online at www.articolo29.it/genius, the English version at scholarship.law.duke.edu/djcil/vol24/iss1/4, the Dutch version at hdl.handle.net/1887/24920, and...Show moreThis Italian version of this article is online at www.articolo29.it/genius, the English version at scholarship.law.duke.edu/djcil/vol24/iss1/4, the Dutch version at hdl.handle.net/1887/24920, and the Vietnamese version at hdl.handle.net/1887/24934.The right to establish and develop relationships with other human beings was first articulated — as an aspect of the right to respect for private life — by the European Commission of Human Rights (in 1976). Since then such a right has been recognised in similar words by national and international courts, including the U.S. Supreme Court (Roberts v. U.S. Jaycees), the European Court of Human Rights (Niemietz v. Germany), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality), and the Inter-American Court of Human Rights (Ortega v. Mexico). This lecture traces the origins of this right, linking it to the meaning of the word ‘orientation’ and to the basic psychological need for love, affection and belongingness (Maslow 1943). It proposes to speak of ‘the right to relate’, and argues that this right can be seen as the common theme in all issues of sexual orientation law (ranging from decriminalisation and anti-discrimination, to the recognition of refugees and of same-sex parenting). This right can be used as the common denominator in the comparative study of all those laws in the world that are anti-homosexual, or that are same-sex-friendly. The right to establish (same-sex) relationships implies both a right to come out, and a right to come together. The right to develop (same-sex) relationships is being made operational through legal respect, legal protection, legal recognition, legal formalization, and legal recognition of foreign formalization. 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
This thesis seeks to explore the landscape of state liability in England and the Netherlands. The history of state liability in the two countries is first told from a constitutional law perspective... Show moreThis thesis seeks to explore the landscape of state liability in England and the Netherlands. The history of state liability in the two countries is first told from a constitutional law perspective. Then two maps are drawn: one of English and one of Dutch law. Finally, a panorama of state liability emerges. Neither the private nor the public law perspective has been excluded from this thesis, which poses three major questions. First, which are the constitutional preconditions for state liability? Secondly, what strikes one most when the maps of the positive law on state liability in England and the Netherlands are compared, side by side? Thirdly, to what extent may the substantive law on state liability in England and the Netherlands converge under European influence? State liability is studied at four distinct levels. The first is constitutional in nature. It is about the state, its organisation and most particularly its subordination to the law. The second is that of the legal protection offered when public authorities overstep their constitutional powers. At the third level are drawn the general lines of the substantive law on state liability. The fourth level is the most concrete: it is that of the case law. Show less
