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Introduction: Special Issue ‘The Legacy of the Mothers of Srebrenica Case’ Utrecht Journal of International and European Law Pub Date : 2021-01-01 Cedric Ryngaert,Kushtrim Istrefi
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Legal Monuments for Srebrenica in the Hague Utrecht Journal of International and European Law Pub Date : 2021-01-01 Otto Spijkers
This paper addresses the question whether the premises of the International Criminal Tribunal for the former Yugoslavia (ICTY), and court judgments adjudicating the responsibility of various actors for what happened in Srebrenica, could be considered “legal monuments”, urging us to remember and show respect for the victims of the Srebrenica genocide of 1995.
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Litigating the Immunities of International Organizations in Europe: The ‘Alternative-Remedy’ Approach and its ‘Humanizing’ Function Utrecht Journal of International and European Law Pub Date : 2021-01-01 Luca Pasquet
There is a clear normative tension between the immunities of international organizations and the human rights to a court and to a remedy. Most national jurisdictions around the world have so far failed to recognize such a normative conflict and applied immunities irrespective of their consequences on individual claimants. However, following the Waite and Kennedy jurisprudence of the European Court
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The Principle of Proportionality in Modern Ius Gentium Utrecht Journal of International and European Law Pub Date : 2021-01-01 Talya Ucaryilmaz
The principle of proportionality refers to the criteria for fair and optimal balancing of interests. It is widely applied to international disputes and has gained institutional and scholarly acceptance in the field of international law. This paper aims to explore the longue duree of the principle, drawing on an interdisciplinary perspective on international law. It affirms the traditional role of proportionality
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Mothers of Srebrenica: Causation and Partial Liability under Dutch Tort Law Utrecht Journal of International and European Law Pub Date : 2021-01-01 Rianka Rijnhout
This article explains the Dutch theory of partial liability and why the application of this theory benefited the plaintiffs in the case of Mothers of Srebrenica from a tort law perspective. Partial liability is a theory under Dutch law to redeem causal uncertainties, and therefore functions as an exception to the main rule of sufficient degree of proof of a condicio sine qua non (CSQN) between the
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The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result Utrecht Journal of International and European Law Pub Date : 2021-01-01 Kushtrim Istrefi
In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether
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Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective Utrecht Journal of International and European Law Pub Date : 2021-01-01 Uglješa Grušić
This article argues that tort law has a role to play in holding the British government to account for overseas violations of international human rights law and international humanitarian law. The context of tortious claims for overseas violations of international human rights law and international humanitarian law brings to the fore, on one hand, issues of attribution and Crown and foreign acts of
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Attributing Conduct in the Law of State Responsibility: Lessons from Dutch Courts Applying the Control Standard in the Context of International Military Operations Utrecht Journal of International and European Law Pub Date : 2021-01-01 Cedric Ryngaert
In two decisions of 2019, the Dutch courts have come up with novel interpretations of the ‘control-based’ standard of attribution in the international law of State responsibility. This is a standard of attribution that is laid down in Article 8 of the International Law Commission‘s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which is, by and large, reflective
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Fair Trial in Mothers of Srebrenica et al.: Guessing as a Form of Reasoning Utrecht Journal of International and European Law Pub Date : 2021-01-01 Zane Ratniece
On 19 July 2019, the Dutch Supreme Court (Hoge Raad) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica (‘Mothers’), a foundation established under the Dutch law, in the interests of more than 6,000 surviving relatives of the Srebrenica genocide. Mothers and ten individual plaintiffs alleged multiple failures by the Dutch State regarding the fall of the Srebrenica
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Civil Society and the IIMM in the Investigation and Prosecution of the Crimes Committed Against the Rohingya Utrecht Journal of International and European Law Pub Date : 2021-01-01 Konstantina Stavrou
This article assesses the role of civil society and the Independent Investigative Mechanism for Myanmar (IIMM) in individual accountability proceedings by foreign domestic courts for the crimes committed against the Rohingya in light of the obstacles faced by Myanmar courts, the International Criminal Court (ICC) and the United Nations Security Council (UNSC). Due to the inability of third States to
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Questioning the Status of the Treaty on the Prohibition of Nuclear Weapons as a ‘Humanitarian Disarmament’ Agreement Utrecht Journal of International and European Law Pub Date : 2021-01-01 Christopher P. Evans
On 22 January 2021, the Treaty on the Prohibition of Nuclear Weapons (TPNW) entered into force. The TPNW has resulted in a mixed response from the international community, instigating much discussion on certain provisions and features of the TPNW. Yet underpinning these analyses rests a commonly shared premise; that the TPNW constitutes a further example of humanitarian disarmament, placing the interests
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All About That Face (No Trouble?) Utrecht Journal of International and European Law Pub Date : 2021-01-01 Johanna Buerkert,Michaël Schut,Lili Szuhai
The Dutch ban on face-covering garments (BFG) has caused a considerable amount of debate in the Netherlands since its entry into force on August 1, 2019. Questions have been raised as to whether this law is discriminatory towards those who wear full-face veils for religious reasons, as these individuals, almost exclusively women, will be excluded from public life based on their religion. Inspired by
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Theorizing the Cooling-Off Provision as an Additional Standard of Investment Protection Utrecht Journal of International and European Law Pub Date : 2021-01-01 Danilo Di Bella
Most of International Investment Agreements (IIAs) contains a cooling-off period provision requiring both parties to an investment dispute to make an attempt to settle their differences amicably within a clear time frame, before initiating arbitration. The cooling-off period is triggered by the notice of dispute sent by the investor to the host-State and can range from several months up to one year
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Legal Consequences of The Separation of the Chagos Archipelago from Mauritius in 1965 (ICJ Advisory Opinion, 25 February 2019, General List No. 169) Utrecht Journal of International and European Law Pub Date : 2020-01-01 Besfort T. Rrecaj
On 25 February 2019 the International Court of Justice (ICJ or the Court) issued its advisory opinion on legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The request for the advisory opinion was made by the United Nations General Assembly (UNGA) through its Resolution 71/292. The Resolution adopted on 22 June 2017 with 94 votes in favor, 15 against and 65 abstantions
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Developments in International and European Law Utrecht Journal of International and European Law Pub Date : 2020-01-01 Desiree van Iersel
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The Illegality of Humanitarian Intervention: The Case of the UK’s Legal Position Concerning the 2018 Strikes in Syria Utrecht Journal of International and European Law Pub Date : 2020-01-01 Agata Kleczkowska
The aim of the article is to examine the legal position presented by the UK after the 2018 airstrikes in Syria, both from the perspective of the legality of humanitarian intervention as well as the criteria employed with regard to a humanitarian intervention in the doctrine of international law. The thesis underlying this paper is that humanitarian intervention is illegal under contemporary international
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Should Forced Marriages be Categorised as ‘Sexual Slavery’ or ‘Other Inhumane Acts’ in International Criminal Law? Utrecht Journal of International and European Law Pub Date : 2020-01-01 Victoria May Kerr
Gender-based crimes occur to this day in armed conflicts across the globe. Forced marriages were rife in Sierra Leone, Cambodia, and Uganda, and a debate has emerged as to how they should be categorised in international criminal law (ICL). The main question this paper examines is: should forced marriages be categorised as ‘sexual slavery’ or ‘other inhumane acts’ in ICL? The principle of nullum crimen
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The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity Utrecht Journal of International and European Law Pub Date : 2020-01-01 Robbert Bruggeman, Joris Larik
The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’
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Transnational Legal Unity Under Pressure: A Contextual Analysis of the European Union Utrecht Journal of International and European Law Pub Date : 2018-01-01 Elaine Mak
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Developments in the Protection of the Citizens’ Rights Under International and European Law Utrecht Journal of International and European Law Pub Date : 2018-01-01 Noémie Gagnon-Bergeron
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On the Meaning of ‘System’ in the Common and Civil Law Traditions: Two Approaches to Legal Unity Utrecht Journal of International and European Law Pub Date : 2018-01-01 René Brouwer
In this paper, I offer an analysis of the different understandings of ‘system’ in connection with the two main Western legal traditions. In the continental ‘civil law’ tradition, ‘system’ is used in relation to the substance of the law, whereas in the English ‘common law’ tradition ‘system’ is rather used in relation to the functioning of the law, in the sense of finding solutions to legal problems
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The ICJ’s Judgement in Somalia v. Kenya and Its Implications for the Law of the Sea Utrecht Journal of International and European Law Pub Date : 2018-01-01 Kai-chieh Chan
By its judgement of 2 February 2017, the International Court of Justice took up jurisdiction to adjudicate the maritime dispute between Somalia and Kenya. Notwithstanding surrounding controversies, the Court set out important rules concerning the law of treaties. The main implication of the judgment is that the Court embraced a more objective definition of treaties and identified the significance of
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Awakening the Leviathan through Human Rights Law – How Human Rights Bodies Trigger the Application of Criminal Law Utrecht Journal of International and European Law Pub Date : 2018-01-01 Mattia Pinto
This article analyses the role that human rights bodies play in triggering the application of criminal law. By examining the jurisprudence of the Inter-American Court of Human Rights, the European Court of Human Rights, the UN Human Rights Committee, as well as other human rights bodies, the article discusses how these institutions have started imposing on states positive obligations to criminalise
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Protection of Civilians: A NATO Perspective Utrecht Journal of International and European Law Pub Date : 2018-01-01 Steven Hill, Andreea Manea
On the occasion of the 2016 Warsaw Summit, the North Atlantic Treaty Organization (NATO) Allied Nations endorsed the NATO Policy on the Protection of Civilians, which was developed with NATO Partners and in consultation with the United Nations and other international organisations. This Policy is further bolstered by Allies’ pledge to implement a concrete Action Plan, which will be reviewed regularly
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How to Continue a Meaningful Judicial Dialogue About EU Law? From the Conditions in the CILFIT Judgment to the Creation of a New European Legal Culture Utrecht Journal of International and European Law Pub Date : 2018-01-01 Jacobien van Dorp, Pauline Phoa
The aim of this article is to better understand the conditions outlined in the CILFIT judgment and their role in creating a meaningful dialogue about European Union law. For these purposes two distinct views on the relation between language and meaning are utilised, as has been argued for by Ludwig Wittgenstein in his Philosophical Investigations. In the CILFIT judgment both of these views surface
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Unity and Diversity in the European Union’s Internal Market Case Law: Towards Unity in ‘Good Governance’? Utrecht Journal of International and European Law Pub Date : 2018-01-01 Jotte Mulder
This article deals with an enduring challenge for the European Court of Justice: striking a balance between the EU market integration requirements and respecting the ‘fundamental structures’ that exist in the Member States through the recognition and accommodation of a range of regulatory options that may restrict trade. The challenge is finding unity in social diversity and many commentators consider
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The Framework for Judicial Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional Dimensions of ‘Judicial Culture’ Utrecht Journal of International and European Law Pub Date : 2018-01-01 Elaine Mak, Niels Graaf, Erin Jackson
Possibilities and constraints for achieving legal unity in the context of the European Union (EU) manifest themselves in multiple and illustrative ways in the development of cooperation between judges in EU Member States. For example, recent discussions on judicial independence in Hungary and Poland underline that we are still quite far removed from the realisation of a shared European normative basis
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A Bundle of Bundles of Rights – International Treaties Regarding Migration in the Light of the Theory of Property Rights Utrecht Journal of International and European Law Pub Date : 2018-01-01 Stefan Schlegel
A growing body of literature has recently discussed the access of migrants to property rights over assets as a requirement for the protection of their human rights and basic interests. Little attention has been paid, however, to the fact that the right to decide over an individual’s migration to a given place is itself a property right. This paper aims to close this gap by describing international
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The Identification of Customary Rules in International Criminal Law Utrecht Journal of International and European Law Pub Date : 2018-01-01 Yudan Tan
This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law. For this purpose, this paper briefly touches upon debates regarding customary law as a source and an interpretative aid of international criminal law. It then critically studies the identification methodology of customary law to seek whether a new approach deviating
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Health Rights Impacts by Agrochemical Business: Legally Challenging the “Myth of Safe Use” Utrecht Journal of International and European Law Pub Date : 2018-01-01 Carolijn Terwindt, Shaelyn Gambino Morrison, Christian Schliemann
The past decades have seen enormous growth in the agrochemical industry. Its pesticides and fertilisers promise to farmers worldwide an increase in yields and a decrease in labour input. The expansion of the pesticides industry results in tremendous costs to others – in the form of chronic illness, acute injuries, and environmental degradation. Such costs are borne disproportionately by farm and plantation
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Legal Unity as Political Unity? Utrecht Journal of International and European Law Pub Date : 2018-01-01 Jeroen Kiewiet
This article offers an analysis of how theories on constitutional revision can help understand crises that threaten legal unity. The Catalonian crisis represents the case study, and is discussed from the perspective of constitutional theory. The article starts out from a conceptualisation of ‘legal unity’ as the organisational as well as political claim of constitutions to provide unity within a certain
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Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions with Article 19 ICCPR Utrecht Journal of International and European Law Pub Date : 2017-08-31 Amy Shepherd
In the years since 9/11, international security discourse has heightened concerns around extremism, positioning this as the key threat that States need to address in order to prevent and combat terrorism. Politically, enactment of domestic legislation curtailing extremist expressions has been internationally authorised and encouraged and in May 2016 the United Kingdom (‘UK’), spearheading a liberal
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Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition Utrecht Journal of International and European Law Pub Date : 2017-08-31 Corri Zoli, M. Cherif Bassiouni, Hamid Khan
This essay is one of the first collaborative efforts to identify the underlying norms embedded in diverse traditions of Islamic law as these apply to contemporary Muslim communities experiencing conflict or transitioning from conflict. This long overdue endeavor draws upon comparative legal analyses, postconflict justice traditions, global governance, and empirical conflict studies to explore why Islamic
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National Courts in the Frontline: Abuse of Rights under the Citizens’ Rights Directive Utrecht Journal of International and European Law Pub Date : 2017-08-31 Tamás Szabados
The free movement and residence of Union citizens and their third country national family members may be restricted under Article 35 of Directive 2004/38/EC on the grounds of abuse of rights. Although the Court of Justice of the European Union (CJEU) had the opportunity to address abuse of rights cases, so far there have been no cases where it has established that abuse of rights took place. For this
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Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard of Proof Utrecht Journal of International and European Law Pub Date : 2017-08-31 Gregor Maučec
In spite of some early judicial, political and scholarly discussions, as well as more recent scientific explorations of the topic, problems and concerns with proving discrimination in individual capital cases continue to be among the most debatable issues in human rights and criminal justice. In general, domestic courts (in particular US courts) seem to remain relatively perfunctory and hostile to
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The Nuclear Disarmament Cases: Is Formalistic Rigour in Establishing Jurisdiction Impeding Access to Justice? Utrecht Journal of International and European Law Pub Date : 2017-08-31 Meenakshi Ramkumar, Aishwarya Singh
Nuclear disarmament falls within the purview of the purposes envisaged in Article 1 of the United Nations Charter. The International Court of Justice (ICJ) in 1996 delivered an advisory opinion on legality of use of nuclear weapons and has stated that the states in good faith must strive towards nuclear disarmament. In the Marshall Islands Cases, 20 years later the ICJ had the opportunity to address
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The Accountability Turn in Third Wave Human Rights Fact-Finding Utrecht Journal of International and European Law Pub Date : 2017-04-12 Federica D’Alessandra
Whereas the characteristics of human rights fact-finding largely vary depending on the typology and scope of the entity that carries it out, consensus seems to be developing that a common set of challenges to human rights fact-finding exists. This is especially so when carried out under United Nations auspices. For example, it has long been acknowledged that the very nature of the institution, sitting
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Inclusive Democracy: Franchise Limitations on Non-Resident Citizens as an Unjust Restriction of Rights under the European Convention on Human Rights Utrecht Journal of International and European Law Pub Date : 2017-04-12 Julie Fraser
The Public International Law and Policy Group (PILPG) advises parties in peace negotiations, on drafting post-conflict constitutions, and assists in prosecuting war criminals. As part of this work, PILPG assists States in establishing and implementing electoral systems that meet international standards for democratic elections, and undertakes election monitoring. Free and fair elections are crucial
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Changing Landscapes in Documentation Efforts: Civil Society Documentation of Serious Human Rights Violations Utrecht Journal of International and European Law Pub Date : 2017-04-12 Brianne McGonigle Leyh
Wittingly or unwittingly, civil society actors have long been faced with the task of documenting serious human rights violations. Thirty years ago, such efforts were largely organised by grassroots movements, often with little support or funding from international actors. Sharing information and best practices was difficult. Today that situation has significantly changed. The purpose of this article
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Bridging Scholarship and Practice: 20 Years of the Public International Law and Policy Group Utrecht Journal of International and European Law Pub Date : 2017-04-12 Brianne McGonigle Leyh, Julie Fraser
When the Editor-in-Chief of the Utrecht Journal of International and European Law (UJIEL) approached us with the possibility of guest editing a special issue related to public international law and policy, we felt the timing could not have been better. As academics at Utrecht University with the Netherlands Institute of Human Rights and Montaigne Centre for Judicial Administration and Conflict Resolution
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A Contemporary Approach to the Oldest International Crime Utrecht Journal of International and European Law Pub Date : 2017-04-12 Michael Scharf, Mistale Taylor
Maritime piracy began to re-emerge a decade ago, mostly off the coast of Somalia, thereby presenting major economic, security and humanitarian concerns. Prosecuting piracy raises many issues, not in the least because traditional maritime piracy from 200 years ago is so notably different from contemporary piracy. The present article describes the Public International Law and Policy Group’s formation
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Navigating the Legal Horizon: Lawyering the MH17 Disaster Utrecht Journal of International and European Law Pub Date : 2017-04-12 Marieke de Hoon
On 17 July 2014, Malaysia Airlines Flight MH17 was shot down over Eastern Ukraine, leaving no survivors. Since, victims’ relatives, States, and the wider public are trying to understand what happened, how it could happen, who is responsible, and how to address these responsibilities. The efforts to find justice have faced many complications and legal complexities. This article aims to provide insight
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A Legal Perspective on Yemen’s Attempted Transition from a Unitary to a Federal System of Government Utrecht Journal of International and European Law Pub Date : 2017-04-12 Paul Williams, Tiffany Sommadossi, Ayat Mujais
Yemen’s 2013–2014 National Dialogue Conference paved the way for Yemen to transition from a unitary to federal system of government. This is a common trajectory for States emerging from conflict as federalism offers the hope for greater democratic governance and inclusivity. Nevertheless, there is a danger in assuming that there is an ideal federal model to emulate or that federalism is itself a guaranteed
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Prosecuting Crimes of International Concern: Islamic State at the ICC? Utrecht Journal of International and European Law Pub Date : 2017-04-12 Cóman Kenny
The rise of Islamic State (IS) has fundamentally altered the conception of terrorism, a development which international criminal law is arguably unprepared for. Given the scale and gravity of the group’s crimes, questions abound as to how those responsible will be held accountable. In the absence of significant domestic prosecutions and short of the establishment of a dedicated accountability mechanism
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Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances Utrecht Journal of International and European Law Pub Date : 2016-09-29 Snjólaug Árnadóttir
An unforeseen fundamental change of circumstances can be invoked to prompt the termination of a treaty, under the customary rule rebus sic stantibus , which is codified in Article 62 of the Vienna Convention on the Law of Treaties (VCLT). The fundamental change must affect the essential basis of the treaty and radically transform obligations still to be performed. Maritime boundaries are agreed upon
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When Does a Child ‘Participate Actively in Hostilities’ under the Rome Statute? Protecting Children from Use in Hostilities after Lubanga Utrecht Journal of International and European Law Pub Date : 2016-09-29 Joshua Yuvaraj
This paper explores the scope of activities children may engage in for a defendant to be convicted for using them to participate in hostilities under the Statute of the International Criminal Court (ICC). It analyses the relevant international law provisions and the ICC’s decisions in the Lubanga matter. It finds that a broad scope of activities more effectively assists the protection of children from
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The Promotion and Integration of Human Rights in EU External Trade Relations Utrecht Journal of International and European Law Pub Date : 2016-09-29 Samantha Velluti
The European Union (EU) has made the upholding of human rights an integral part of its external trade relations and requires that all trade, cooperation, partnership and association agreements with third countries, including unilateral trade instruments, contain with varying modalities and intensity a commitment to the respect for human rights. The paper discusses selected aspects of the EU’s promotion
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The Joined Cases Aranyosi and Căldăraru: A New Limit to the Mutual Trust Presumption in the Area of Freedom, Security, and Justice? Utrecht Journal of International and European Law Pub Date : 2016-09-29 Koen Bovend’Eerdt
In this case, the CJEU answers the question whether Article 1(3) of the Framework Decision on the European arrest warrant must be interpreted as meaning that when there are strong indications that detention conditions in the issuing Member State infringe Article 4 of the Charter, the executing judicial authority must refuse surrender of the person against whom a European arrest warrant is issued. The
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Intellectual Property Rights in Traditional Knowledge: Enabler of Sustainable Development Utrecht Journal of International and European Law Pub Date : 2016-09-29 Freedom-Kai Phillips
Traditional knowledge (TK) plays an integral role in supporting sustainable development practices and can act as an enabler of sustainable development in indigenous and local communities (ILCs) through recognition of intellectual property rights (IPRs). This paper explores points of convergence and divergence, arguing that the application of IPRs to TK held by ILCs can help facilitate sustainable development
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It’s not the Fish that Stinks! EU Trade Relations with Morocco under the Scrutiny of the General Court of the European Union Utrecht Journal of International and European Law Pub Date : 2016-09-29 Sandra Hummelbrunner, Anne-Carlijn Prickartz
The EU’s international agreements with Morocco on trade in agricultural and fishery products have drawn criticism due to their application to the disputed territory of Western Sahara, a territory that remains on the list of non-self-governing territories to be decolonised in accordance with the right of self-determination of the indigenous Sahrawi people. Recently, the Sahrawi liberation movement Front