Hoe serieus moeten we het internationaal recht nemen? Over de relatie tussen artikel 90, 93 en 94 GrondwetDeze kwestie lijkt mij actueel en dringend in Nederland, waar rechtstreeks werkend... Show moreHoe serieus moeten we het internationaal recht nemen? Over de relatie tussen artikel 90, 93 en 94 GrondwetDeze kwestie lijkt mij actueel en dringend in Nederland, waar rechtstreeks werkend internationaal recht fungeert als een kader van “hoger recht”. De concrete vraag die ik in deze bijdrage wil stellen luidt: is er een plicht voor de regering, om zich coherent tot dit “hoger recht” te verhouden? Mijn conclusie is dat artikel 90 Grondwet deze plicht onvermijdelijk maakt.Hier schets ik eerst een beeld van hoe grondwetten doorgaans de rol van hoger recht vervullen (en waarom dit belangrijk is). Vervolgens kijk ik naar Nederland en de rol van het internationaal recht. Ten slotte maak ik duidelijk waarom het belangrijk is om internationaal recht serieus te nemen – de oplettende lezer herkent hierin ongetwijfeld de invloed van Ronald Dworkin, van wie ik ook het idee van coherentie geleend heb. Show less
This article addresses the question of how the EU’s legal constraints can be overcome in the governance of Global Spaces. It shows, first, that EU law is part of a trend of including language... Show moreThis article addresses the question of how the EU’s legal constraints can be overcome in the governance of Global Spaces. It shows, first, that EU law is part of a trend of including language relating to Global Spaces in constitutional documents. The article subsequently highlights a tension specific to the EU as a non-state entity. While the EU Treaties enshrine grand foreign policy ambitions, which are impossible to achieve without a proactive role across the Global Spaces, EU law imposes several obstacles that complicate the pursuit of these ambitions. These concern particularly the need to base EU actions on powers conferred by the member states, the parallel international presence of the Union and the member states, and difficulties for the EU to join relevant international agreements and institutions. The article argues that through legal creativity, these constraints can be largely overcome, enabling the EU to pursue its ambitions nonetheless. Show less
Like borders, refugee protection settings beyond the EU often serve as testing grounds for technologies. This article takes a socio-legal perspective to show how humanitarian experimentation in... Show moreLike borders, refugee protection settings beyond the EU often serve as testing grounds for technologies. This article takes a socio-legal perspective to show how humanitarian experimentation in these contexts is made possible through different, interacting challenges to sovereignty. It argues that the understanding that actors or their positions are “exceptional” allows for and justifies data practices that would otherwise not be legally permissible. Examples of data practices in refugee protection settings are connected to work in geopolitics, science and technology studies, and sociology of law.The article shows how the position of the United Nations High Commissioner for Refugees (UNHCR) as negotiator on behalf of refugees and an emergency-driven techno-solutionism not only interacts with the already precarious legal context most people seeking refuge find themselves in. It coincides with the legal positioning of International Organisations and with citizenship-oriented conceptions of privacy, further constituting people seeking refuge as (digital) rights optional. This is problematic not least because of concerns about adequate data protection or the implications of bias. Data flows and algorithms are generative of the politics of contemporary societies, implying that the structural undermining of digital rights of people seeking refuge in the present can also hinder their access to rights in the future. Show less
Environmental factors increasingly define today’s global security landscape. In recognition of the role that environmental factors play in triggering, fueling and sustaining armed conflicts at the... Show moreEnvironmental factors increasingly define today’s global security landscape. In recognition of the role that environmental factors play in triggering, fueling and sustaining armed conflicts at the local, regional and even global level, environmental peacebuilding has emerged as a new field of research and practice. This chapter introduces the reader to the growing scholarship in this field and discusses the contributions that international normative and institutional frameworks make to it. In this way, it sets the scene for more detailed discussions on the role of these normative and institutional frameworks in the other chapters in the book. It concludes with an appraisal of the contributions that the book makes to existing scholarship and identifies future areas for research. Show less
In this article, the authors examine the many facets of the UTPR (formerly known as the undertaxed payments rule) debate through the lens of an international law assessment.
Discrimination is still not sufficiently addressed within liberal democracies. Often only some groups are protected against discrimination and merely in certain situations. This leaves many who... Show moreDiscrimination is still not sufficiently addressed within liberal democracies. Often only some groups are protected against discrimination and merely in certain situations. This leaves many who suffer because of discrimination without recourse. And that is only one of the dilemmas with group-based approaches to the protection against discrimination. So why are these approaches so common? And can we find a viable alternative?In this new book, legal scholar Erwin Dijkstra answers these questions. His analysis is thorough, original, and thought-provoking. This makes Discrimination and the Foundation of Justice indispensable for anyone who seeks a better understanding of discrimination law, the relevant human rights context, and the debate on improving the protection against discrimination. That debate is brought to life through a thoughtful discussion of hotly debated topics like hate speech, affirmative action, and institutions that speak out against discrimination.As discrimination concerns us all, this book was written as a resource for all. It is meant to be read by those studying discrimination law professionally and the broader public alike. Show less
full book landing page (including bibliography): https://www.pulp.up.ac.za/component/edocman/sixty-years-after-independence-africa-and-international-law-views-from-a-generation-soixante-ans-apres... Show morefull book landing page (including bibliography): https://www.pulp.up.ac.za/component/edocman/sixty-years-after-independence-africa-and-international-law-views-from-a-generation-soixante-ans-apres-les-independances-l-afrique-et-le-droit-international-regards-d-une-generation 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
Corporate taxation and particularly corporate tax incentives that jurisdictions introduce in special economic zones have not, until recently, been subject to extensive international regulation.... Show moreCorporate taxation and particularly corporate tax incentives that jurisdictions introduce in special economic zones have not, until recently, been subject to extensive international regulation. Only in the last decade has a regime of soft law standards and European Union measures with extraterritorial effect been constructed. This article explains how the Base Erosion and Profit Shifting Action Plan developed by the Organisation for Economic Co-operation and Development (OECD) and the European Union Code of Conduct for Business Taxation interact with corporate tax incentives in special economic zones. Empirical evidence from Latin American and Caribbean jurisdictions shows that this emerging international regime began having an impact on special economic zone laws beyond the OECD and European Union Member States. An analysis of ongoing negotiations on the further developments of the international tax regime permits the cautious conclusion that the regulation of SEZs may in the future be affected in a more fundamental manner by international norms. Thereby, the article shows that special economic zones’ unilateralism in corporate taxation may be slowly receding in contrast to other areas of international economic governance. 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
RECOMMENDATION: Increase the universal acceptance of international justice institutions, in particular the International Court of Justice (ICJ) and the International Criminal Court (ICC). Moreover,... Show moreRECOMMENDATION: Increase the universal acceptance of international justice institutions, in particular the International Court of Justice (ICJ) and the International Criminal Court (ICC). Moreover, increase their enforcement powers, preserve their independence, and enhance their resilience against political pressures. Show less
As a complement to the background note on the positions concerning the 14 April 2018 military response to the poison gas attack on Douma assumed by the Netherlands and key allies, the present note... Show moreAs a complement to the background note on the positions concerning the 14 April 2018 military response to the poison gas attack on Douma assumed by the Netherlands and key allies, the present note provides a general overview of the relevant legal norms and the academic debate surrounding the issues of interstate use of force and humanitarian intervention, including reform proposals for the way forward. It does not claim to provide an exhaustive treatment of the subjects covered and the available literature on them. Rather, its intention is to provide context, background, and stimulate debate among the members of the Expert Group. Show less
This thesis explores the application of the United Nations Convention on the Rights of the Child, 1989 (‘the CRC’) by domestic courts, in the light of the formal domestic rules which govern the... Show moreThis thesis explores the application of the United Nations Convention on the Rights of the Child, 1989 (‘the CRC’) by domestic courts, in the light of the formal domestic rules which govern the relationship between international treaties and domestic law. The focus is on three legal systems – Australia, France and South Africa – purposefully selected to represent three different reception models: dualist, monist and hybrid respectively. The thesis demonstrates that the formal rules of reception are only a starting point for the courts, but do not always explain why, how and with what consequences the courts have given effect to the CRC. The courts have applied the CRC creatively, building on the strengths of their respective systems and sometimes compensating for potential vulnerabilities in the domestic reception framework. The thesis calls for, inter alia, a recognition of the complex position of the courts at the intersection between domestic and international law; and for a closer exploration of the added value of the Convention in relation to other legal instruments. It also encourages a dialogue between the CRC Committee and the courts in relation to the interpretation of the CRC. Show less
International law relies heavily on the machinery of the state for therealisation of its aims. Often those aims require further implementation inthe legal orders of states. States, in turn, enjoy a... Show moreInternational law relies heavily on the machinery of the state for therealisation of its aims. Often those aims require further implementation inthe legal orders of states. States, in turn, enjoy a wide margin of freedom inthe choice of means and methods to fulfil their obligations under internationallaw. However, implementation sometimes requires the involvement ofthe state body entrusted with the task of adopting legislation: the nationallegislature. This study explores its role in the implementation of internationallaw at home. It analyses the regulation of national implementing legislationunder international law. Does international law provide for requirements tobe observed by national legislatures involved in the adoption of implementinglegislation? If so, is their application in practice sufficient to ensure thequality of national implementing legislation? Can we improve national andinternational practice in this regard? Show less
This study offers an overview of the challenges occurring in the emerging regime of international criminal justice as a tool of sustainable peace. It illustrates the impact of such regime in... Show moreThis study offers an overview of the challenges occurring in the emerging regime of international criminal justice as a tool of sustainable peace. It illustrates the impact of such regime in international law and international relations focusing on the obstacles and concerns of its governance in the context of the maintenance and restoration of international peace and security. It advocates for an appropriate interaction strategy between the United Nations and the Rome Statute institutions as a matter of international mutual concern and for the sake of human security. Show less
The book sets out an analysis of how the law is used as a means to remove decision-making rights from people with mental health issues and people with intellectual disabilities. It explains how... Show moreThe book sets out an analysis of how the law is used as a means to remove decision-making rights from people with mental health issues and people with intellectual disabilities. It explains how international law can be used to repatriate these rights. Show less
