Leiden University Scholarly Publications

Groff, M.; Larik, J. 2020

Strengthening the Rules-Based Global Order: The Case for an International Rule of Law Package

Research paper

open access

A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global... Show moreA key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments. In this paper, we propose an ambitious, yet realizable “International Rule of Law Package” of reforms meant to substantially enhance the integrity of the international governance system. Key international justice institutions the International Court of Justice, the International Criminal Court, and the UN’s Human Rights architecture should be strengthened in terms of both their jurisdiction and effectiveness. In addition, the UN75 anniversary represents an opportunity to pave the way for new bodies to fill existing institutional gaps. Hence, we support the creation of an international anti-corruption court as well as an international judicial training institute to ensure the requisite capacity, skills, and knowledge across international courts. The international community, on this historic occasion, should begin focused discussion on such an international rule of law reform package with the goal of modernizing and making more robust and legitimate the core international governance architecture, fit for the range of global challenges it now confronts. Show less

Le Moli, G. 2020

The Human Rights Committee, Environmental Protection and the Right to Life

Article / Letter to editor

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In its August 2019 decision in Portillo Cáceres v Paraguay, the Human Rights Committee recognised, for the first time, the existence of a connection between environmental protection and the right... Show moreIn its August 2019 decision in Portillo Cáceres v Paraguay, the Human Rights Committee recognised, for the first time, the existence of a connection between environmental protection and the right to life with dignity. This is not only a landmark decision for the Committee but also represents the consolidation of a body of case law and practice from the three regional human rights courts and other UN human rights bodies which has developed over the last quarter of a century. It also shows the potential of two important and widely debated paragraphs in the newly adopted General Comment No. 36 on the Right to Life, which describe environmental degradation as both an enabler of threats and a direct threat to the right to life. Such potential has been confirmed in another landmark decision of the HRC—Teitiota v New Zealand, relating to climate change as threat to life. This article draws on Portillo Cáceres v Paraguay and Teitiota v New Zealand to analyse this wider field of practice in order to clarify the connection between the right to life and environmental protection, as recognised by the Committee, and considers its potential impact on future litigation. Show less

Le Moli, G. 2019

President of the Republic et al. v. Ali Ayyoub et al.

Article / Letter to editor

open access

Klaassen, M.A.K. 2019

Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases

Article / Letter to editor

open access

The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it... Show moreThe European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases. Show less

Roes, T.; Petkova, B. 2019

Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of Mutual Trust

Part of book or chapter of book

open access

2019-09-01T00:00:00Z

This chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing... Show moreThis chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing legal framework guarantees the endurance of the cooperative dialogue between both courts. First, it summarizes the ground rules of their symbiosis, going over the status of the European Convention on Human Rights in EU law and the ECtHR’s recognition of the EU’s legal personality. Then, it briefly addresses the impact of the CJEU's Opinion 2/13 on the EU’s accession to the Convention before exploring, in section 3, the many forms that the judicial dialogue between the CJEU and the ECtHR has taken over the years and discussing the influence of the jurisprudence of one over the other. A final part asks whether it is possible to move beyond labels of comity and identify a legal duty for both courts to cooperate. Show less

Dam-de, Jong D.A. 2019

Building a sustainable peace: How peace processes shape and are shaped by the international legal framework for the governance of natural resources

Article / Letter to editor

open access

Natural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important... Show moreNatural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important trigger for a relapse into armed conflict. For these reasons, it is of the utmost importance, both from a security and a development perspective, to address natural resources as an integral part of the peace process. This article aims to assess how provisions in peace agreements addressing natural resource governance are embedded in the international legal framework. It inquires into the particularities and legal nature of peace agreements and examines the various functions of natural resource arrangements as part of peace agreements. Finally, as each category of natural resources comes with distinct legal questions and peacebuilding challenges, the article zooms in on water governance as a case study to explore the different ways in which natural resource arrangements in peace agreements and international law interact. The analysis is based on a study of 40 intra‐State agreements, including the 2015 South Sudan agreement, the 2015 Mali agreement and the 2016 Colombian agreement. Show less

Arenas Catalán, E.S. 2018

Review of Fernández, K.; Smart, S.; Peña, C. (2017) Chile and the Inter-American Human Rights System

Book review

open access

Gkliati, M. 2018

A Nexus Approach to the Responsibility of the European Border and Coast Guard: From Individual to Systemic Accountability

Article in monograph or in proceedings

open access

The interaction of multiple actors if European Border and Coast Guard Operations leads to a nexus of responsibilities, both individual and collective, positive and negative, direct or indirect,... Show moreThe interaction of multiple actors if European Border and Coast Guard Operations leads to a nexus of responsibilities, both individual and collective, positive and negative, direct or indirect, that is hard to disentangle. The connections between the responsibility of member states and that of the agency often lead to a non-singular answer to the question of the one responsible, which is not accommodated by the existing paradigm of legal accountability. Thus, this paper suggests a different approach to accountability, named ‘systemic accountability’, arguing from the perspective of justice, the rule of law, and strategic litigation. Show less

Hadiprayitno, I. 2017

The Limit of Narratives: Ethnicity and Indigenous Rights in Papua, Indonesia

Article / Letter to editor

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As in many countries in Asia, the concept “indigenous” is a highly contested term in Indonesia. The government is of the opinion that Indonesia is a nation that has no indigenous peoples, or that... Show moreAs in many countries in Asia, the concept “indigenous” is a highly contested term in Indonesia. The government is of the opinion that Indonesia is a nation that has no indigenous peoples, or that all Indonesians are equally indigenous. The article aims to analyse the role and the paradox of using ethnic narratives, i.e. distinct social, economic or political systems, as well as language, culture and beliefs as their material and political basis, in the articulation of indigenous rights. Upon discussing a case study from Papua, Indonesia, it is observed that the use of ethnic narratives does create opportunity structures necessary for the struggles of indigenous rights. However, the salience of these endeavours is shaped by how these groups, their autonomy and marginalisation are positioned in the wider context of development, sovereignty and territoriality, which make them also dependent on the design and orientation of the state. Show less

Larik, J.E. 2015

Good global governance through trade: constitutional moorings

Part of book or chapter of book

open access

Ensuring good global governance through trade is not just a powerful idea, or a ‘global strategy’; it is also firmly anchored in the highest laws of the European Union. Promoting good global... Show moreEnsuring good global governance through trade is not just a powerful idea, or a ‘global strategy’; it is also firmly anchored in the highest laws of the European Union. Promoting good global governance through trade policy brings together two of the hallmarks of the EU as an international actor. On the one hand, it concerns the area of the EU’s most obvious asset, its economic clout. On the other hand, this relates to the idea of the EU not only as a ‘civilian power’, but as a ‘normative power’ which shapes the world around it by harnessing its economic strength according to a larger vision and based on values which go beyond the strictly economic realm. In order to capture the constitutional moorings of the mandate to pursue ‘good global governance’ through trade and to elucidate its implications, the present chapter shines the spotlights on this issue through three different lenses: historical, comparative and legal-institutional. First, it retraces the evolution of this idea and its progressive codification in the course of time. Second, it puts the EU’s constitutional ‘conscience’ as a trade power into a comparative context. Against this double backdrop, the chapter then turns to the legal significance of such norms, addressing what they can – and cannot – achieve as norms of EU constitutional law. Show less