This Thesis aims to show the necessity and benefits of historically self-aware legal theory and practice in preventing and resolving conflicts that have a religious dimension. Contrary to Iberian... Show moreThis Thesis aims to show the necessity and benefits of historically self-aware legal theory and practice in preventing and resolving conflicts that have a religious dimension. Contrary to Iberian and French colonial projects, early modern Dutch and English thinkers developed ways to encounter non-European legal systems without having to take a position on issues like missionary obligation, forcible conversion, or non-Christians’ right to property and sovereignty. This colonial advantage was a corollary of secularising ideas and steps to improve domestic stability in a time of religious conflict, including the deprioritisation of divine laws, refuting chosen nation ideologies, and subverting theology’s claim to epistemic supremacy. The new system reduced the economic and ideological costs of imperialism. Understood as a contingent, cumulative and incomplete process, and partially the unintended consequence of limited designs for stability and peace, secularisation is a useful concept in legal historiography. The examination of Dutch and English secularisation and soft imperialism offers a new perspective on the decline of French and Iberian early modern empires, and eighteenth- and nineteenth-century exceptionalisms. Further, it sheds light on why, when and how public international law became desensitised to the contingency of secularisation as a process, and secularism as a norm 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
The manuscript studies NGOs in international law. For that purpose, NGOs were appraised under each of the sources of international law, which, according to authoritative legal doctrine, were listed... Show moreThe manuscript studies NGOs in international law. For that purpose, NGOs were appraised under each of the sources of international law, which, according to authoritative legal doctrine, were listed in article 38 of the Statute of the International Court of Justice. The thesis also addresses the challenges to the legitimacy of States and Intergovernmental Organizations in an era in which electoral democracies constitute the predominant form of government. The research has identified that international law is changing to accommodate new subjects of law that were not conceivable under positivism. The author argues that NGOs are subjects of law to the same extent that Intergovernmental Organizations are, because both are created by subjects of international law (States and individuals) under a typical principal-agent relationship as rational-legal bodies entrusted with certain functions, which, with the attendant duties and responsibilities, were clothed by its constituencies __with the competence required to enable those functions to be effectively discharged__. Show less
This thesis examines the attitude of the Hungarian Constitutional Court (“HCC”) and thePolish Constitutional Tribunal (“PCT”) towards EU law in their case-law. The predominantGerman legal influence... Show moreThis thesis examines the attitude of the Hungarian Constitutional Court (“HCC”) and thePolish Constitutional Tribunal (“PCT”) towards EU law in their case-law. The predominantGerman legal influence in the Central European region is explored from perspectives of legalhistory and culture in order to explain its enduring attraction. In order to provide theframework for the research, the case-law of the German Federal Constitutional Court(“FCC”) on the main principles comprehending the essential core of national sovereignty, thecontents of which are not susceptible to transfer or limitation, are set against theconstitutional requirements of EU law as enunciated by the European Court of Justice(“ECJ”) in its own foundational case-law. Such analysis thus provides the “German model,”by which the FCC has “negotiated” its position vis-à-vis the Union’s fundamental principles(e.g., primacy, direct effect, priority of ECJ rulings) which the ECJ has developed through itsjudgments. In pursuing this research, the decision-making of the two Central European courts isconsidered in the light of the putative influence of the German model. The increasingly activeparticipation of the HCC and particularly the PCT in helping to negotiate the newconstitutional context of the Union, based post-Lisbon on the respect of nationalconstitutional identities in Art. 4(2) TEU, is explored. The multilayered judicial construct ofEurope still remains replete with recognition problems for which the research seeks tosuggest some limited and focused changes. 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
This article expresses a note of caution regarding the general enthusiasm surrounding the duty of sincere cooperation in the external relations of the European Union. It argues that according to... Show moreThis article expresses a note of caution regarding the general enthusiasm surrounding the duty of sincere cooperation in the external relations of the European Union. It argues that according to the recent case law of the European Court of Justice, the duty is in practise not only first and foremost incumbent upon the Member States, but manifests itself as a strict duty to refrain from acting – a duty to remain silent – rather than a duty of best endeavours. Tracing the Court’s key judgements in this regard (Inland Waterways, IMO and PFOS), the authors conclude that in the presence of Union competence, but in the absence of a (quasi)-authorisation by the Union institutions to act, the Member States are to remain idle. While arguably necessary to safeguard the Union’s unity of international representation, this development is prone to legally favour inaction and hinder the Union’s ambitions for actual “external action”. Show less
This political biography analyzes the political influence of, and methods used by, P.W.A. Cort van der Linden (1846-1935), Dutch Prime-Minister from 1913 to 1918. While he was a Professor of... Show moreThis political biography analyzes the political influence of, and methods used by, P.W.A. Cort van der Linden (1846-1935), Dutch Prime-Minister from 1913 to 1918. While he was a Professor of Economics he developed a view of liberalism based on German idealism which also included a progressive use of Social Darwinism. This view was what he called “the theory of a higher sense of justice.” The application of this theory is evident in his legislation to protect children (1901) as well as in the constitutional revision of 1917. According to Van der Linden’s views, it was ‘a political necessity’ to introduce general male suffrage. He also made the future introduction of female suffrage possible, and, in spite of criticism from Kuyper, the leader of the Calvinistic antirevolutionary party, he made possible the equal treatment of private, denominational, and state schools. The non-partisan attitude of the Prime-Minister was also important for the maintenance of neutrality in the Netherlands during the First World War. Van der Linden stayed in close contact with Germany while Foreign Secretary Loudon spoke to the French. In addition to all these efforts, the Prime-Minister had to settle disputes within his cabinet, with commander-in-chief Snijders and with Queen Wilhelmina. Show less
2006 marks the 60th anniversary of what, in its time, was declared 'the biggest trial in recorded history'. The International Military Tribunal for the Far East - which tried Japanese military and... Show more2006 marks the 60th anniversary of what, in its time, was declared 'the biggest trial in recorded history'. The International Military Tribunal for the Far East - which tried Japanese military and civilian leaders for war crimes, crimes against humanity, and 'crimes against peace' - surpassed the Nuremberg trial in duration (two and a half years), in the number of accused (28), in the number of presiding judges (11), and in the length of its judgment (over 1,200 pages). But compared to Nuremberg, which is widely seen as a watershed moment in international law, Tokyo remains obscure. Show less
Human rights are a source of friction between Southeast Asian and European governments. Southeast Asian politicians generally emphasise principles of sovereignty and non-interference in internal... Show moreHuman rights are a source of friction between Southeast Asian and European governments. Southeast Asian politicians generally emphasise principles of sovereignty and non-interference in internal matters, while their European counterparts tend to champion democracy, human rights and good governance beyond their borders. The differences in approach, however, do not seem as daunting today as they once did. Show less
What can international civil society do to further justice for victims and survivors of war crimes and crimes against humanity in cases where perpetrators will never be brought to trial? Is it time... Show moreWhat can international civil society do to further justice for victims and survivors of war crimes and crimes against humanity in cases where perpetrators will never be brought to trial? Is it time to look beyond official state and international organs? Initiatives from civil society can return dignity to survivors, empower ordinary people, educate the public and create lasting records where official justice has been denied. Show less
Justice and not retribution marked the end of the second world war. With four former prime ministers on trial, the judgement at Tokyo was unequivocal: impunity had no place in the modern world.
Yes, according to two landmark decisions of 2006. In January, the High Court of South Korea ordered Dow Chemical and Monsanto, US producers of Agent Orange used during the Vietnam War, to... Show moreYes, according to two landmark decisions of 2006. In January, the High Court of South Korea ordered Dow Chemical and Monsanto, US producers of Agent Orange used during the Vietnam War, to compensate South Korean troops affected by the agents. In June, a French court ordered both the French government and the state railway company SNCF to compensate two families of Jews deported during the Nazi occupation. Will these rulings have any effect on similar cases pending elsewhere? How might they affect law governing the responsibility of non-state actors for crimes under international law? Show less
Beginning in October 2005 a new campaign against Cambodia was launched in the international press. It alleged, as does much news from that country, heavy-handed repression and human rights... Show moreBeginning in October 2005 a new campaign against Cambodia was launched in the international press. It alleged, as does much news from that country, heavy-handed repression and human rights violations by Prime Minister Hun Sen, citing, among other sources, Brad Adams - a prominent figure in the international NGO Human Rights Watch, which like all such self-defined organisations is assumed by the public to be defending the true and the good. Show less
