Research & publications In the spotlight

Between 2015 and 2018, the Dutch government has supported Syrian rebels fighting the regime of President Bashar al-Assad through a ‘non-lethal assistance’ (NLA) program. Pertinent questions have been raised regarding the program’s compatibility with international law and a joint commission was tasked with developing criteria to evaluate the legality and political expediency of future programs. This commentary looks in retrospect at the legality of the NLA program. The substantive analysis is divided into three sections: First, it provides an overview of hard-and-fast facts about the program that have come to light following an admirable amount of journalistic scrutiny and parliamentary debate. Second, it takes a helicopter view of the legal landscape, touching upon the relevant primary norms of international law. Third, it applies that legal framework to the Dutch NLA program, tackling a threefold question: (1) Is the type of assistance legally relevant? (2) Is the type of beneficiary non-State armed group legally relevant? (3) Is the aim or purpose of the assistance programme legally relevant? While the authors recognize that the program was limited in scope and explicitly designed to stay within (or as close as possible to) the parameters of the international legal framework, they nevertheless conclude that it violated the principle of non-intervention, the prohibition on the use of force and the duty to ensure respect for international humanitarian law. Moreover, it may have led to secondary State responsibility for serious breaches of international law committed by the beneficiary armed groups. This conclusion puts in doubt the legality as a matter of lex lata of any such future program, be it lethal or not.

Peace is a political construct in the early modern period. War was viewed as a process whereby two sovereign states pursued their rights by violence or artifice. Domestic and international law were intertwined in legal doctrine. Authors of natural law-treatises incorporated an ought-dimension in their writings to describe the framework in which sovereigns should act according to a systematic analysis of a morally established hierarchy. This chapter first provides an elementary overview of sources and historiographical traditions (I). Second, it presents the classical canon of doctrine, from Spanish neo-scholastics (Vitoria) to so-called positivism (Martens), as it developed in relation to the broader intellectual, religious and institutional context as Humanism, Enlightenment, confessionalisation, and the Empire shaped thinking about war and peace (II). Finally, the chapter offers a brief overview of the practical use of legal arguments: treaty collections and repositories of pamphlets were used in political practice in conjunction with classical authors such as Gentili, Grotius or Pufendorf (III).

At the end of the 20th century it seemed the only way was up for the development of international law. The creation of the International Criminal Court, the establishment of the World Trade Organization and the rallying call uttered in global unison against environmental threats in Rio confirmed the importance of international law and the possibilities of global cooperation.

Twenty years into the 21st century however, the credos of ‘effective multilateralism’ and ‘world peace through law’ have increasingly given way to talk of a ‘crisis’ of the international legal order and a ‘backlash’ against international courts and institutions. The ICC faced State party withdrawals, the WTO Appellate Body was brought to its knees by unilateral action and a State party failing the Kyoto Protocol simply walked out on its obligations. On top of that, some States grew the habit of tossing unilateral sanctions at one another in revengeful fits. At first sight then, it looks as if the enthusiasm for the international project, characteristic of the early post-Cold War era has slowly but surely begun to wane.

This chapter takes a closer look at the past events of this century and it concludes that in reality a more nuanced picture has unfolded. The unbridled pursuit of the ‘war on terrorism’ has found its check in human rights, regimes of equitable sharing of natural resources on land and sea are budding, and the clear call of soft law to match global corporations’ muscle with responsibilities can no longer be ignored. The great powers of today may not always sing the same tune, for now, they are still able to perform a harmonious medley from time to time.

Beyond the boundaries of national jurisdiction, the seabed and its mineral resources are governed by a comprehensive international regime, consisting of the 1982 Law of the Sea Convention, the 1994 Implementation Agreement and detailed rules issued by the International Seabed Authority (ISA), and the exploitation phase is gradually approaching. However, the United States has not ratified the treaties, which gives rise to several issues. Indeed, depending on legal interpretation, this results in the US either being authorized to claim and exploit natural resources within the Area without prior permission of the ISA, or the US being barred from any deep sea mining activities beyond national jurisdiction. Furthermore, with regard to mineral exploitation on the continental shelf, the non-ratification of the treaties concerned also results in a number of legal questions. On the basis of a purposeful discussion of relevant international law and a thorough analysis of the US position towards the deep sea mining provisions of the 1982 Law of the Sea Convention, as adapted by the 1994 Implementation Agreement, as well as its current role within the context of deep sea mining, this article attempts to solve this legal conundrum. Does the US find itself in a privileged position, being able to disregard the international regime and to exploit mineral resources however and wherever they please, or should the US be regarded as the odd man out, excluded from deep sea mining activities until they ratify the relevant treaties?

Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.

Beyond national jurisdiction, the deep seabed and its mineral resources are designated as ‘common heritage of mankind’. Nevertheless, the governing legal framework does not only consist of international instruments, as domestic legislation issued by sponsoring states also plays a decisive role. The legitimacy of certain national provisions can be questioned though, taking into account the duty to carry out activities in the Area for the benefit of mankind as a whole. For instance, can a sponsoring state demand that the proposed mining activities are in the public interest of the state? Are they allowed to generate revenue by introducing a recovery fee or other taxes? And should developing states enjoy more leeway, given the particular consideration for their interests and needs in the Law of the Sea Convention? This article analyses to what extent creeping national interests in domestic legislation on deep sea mining are in accordance with international law.

The US is increasingly weaponizing economic sanctions to push through its
foreign policy agenda. Making use of the centrality of the US in the global
economy, it has imposed ‘secondary sanctions’ on foreign firms, which are
forced to choose between trading with US sanctions targets or forfeiting access to the lucrative US market. In addition, the US has penalized foreign
firms for breaching US sanctions legislation. In this contribution, it is argued
that the international lawfulness of at least some secondary sanctions is
doubtful in light of the customary international law of jurisdiction, as well as
conventional international law (eg, WTO law). The lawfulness of these sanctions could be contested before various domestic and international judicial
mechanisms, although each mechanism comes with its own limitations. To
counter the adverse effects of secondary sanctions, third states and the EU
can also make use of, and have already made use of, various non-judicial
mechanisms, such as blocking statutes, special purpose vehicles to circumvent
the reach of sanctions, or even countermeasures. The effectiveness of such
mechanisms is, however, uncertain.

The volume comprises 34 chapters including contributions by GRILI members Tom Ruys and Luca Ferro

Full list of authors: Tom Ruys, Nicolas Angelet, Luca Ferro, Hazel Fox, Lori Fisler Damrosch, Wenhua Shan, Peng Wang, Alexander Orakhelashvili, Yas Banifatemi, Sally El Sawah, Catherine Amirfar, Niels Blokker, Kristen E. Boon, Ramses A. Wessel, Jean-Marc Thouvenin, Victor Grandaubert, Ingrid Wuerth, Cedric Ryngaert, Matthew Happold, Eric De Brabandere, Mark A. Cymrot, Mathias Audit, Maria-Clara Van Den Bossche, Frédéric Dopagne, Sanderijn Duquet, Eileen Denza, Andrew Sanger, Michael Wood, Muriel Ubéda-Saillard, Rosanne Van Alebeek, Chimène I. Keitner, Christian Walter, Fabian Preger, Aurel Sari, Rosa Freedman, Nicolas Lemay-Hébert, Harmen Van Der Wilt, Pierre D'argent, Pauline Lesaffre, Phillipa Webb and David P. Stewart.

This textbook offers for the first time a comprehensive analysis of the classic doctrines and main areas of international law from a European perspective, meeting the needs of the many European law schools teaching public international law in English. Special attention is devoted to the practice of the European Union, the Council of Europe and European States – both civil law and common law countries – with regard to international law. In particular the book analyses the interplay between international law, EU law and national law in the case law of the Court of Justice of the EU, the European Court of Human Rights and national jurisdictions in Europe. It provides the reader with insights into how the international legal practice of the EU and its Member States impacts the development of international law, both in terms of doctrines such as treaty-making and customary law, the exercise of (extraterritorial) jurisdiction, state responsibility and the settlement of disputes, as well as particular sub-fields of international law, such as human rights law and international economic law. In addition the book covers other important areas such as the use of force and collective security, the law of armed conflict, and global and regional international organisations. It provides European perspectives on all these issues and will be of great value to students, scholars and practitioners.

The volume comprises 66 chapters including contributions by GRILI members Tom Ruys, Alexandra Hofer and Luca Ferro.

Full list of authors: Constantine Antonopoulos, Karine Bannelier, Janina Barkholdt, Susan Breau, Wenke Brückner, Michael Byers, Enzo Cannizzaro, Kenneth Chan, Théodore Christakis, Olivier Corten, Fanny Declercq, Ashley Deeks, Oliver Dörr, François Dubuisson, Luca Ferro, Mathias Forteau, Gregory H. Fox, Daniel Franchini, Tarcisio Gazzini, Terry D. Gill, Christine Gray, James A. Green, Douglas Guilfoyle, Andrea de Guttry, Gerhard Hafner, Nabil Hajjami, Wolff Heintschel von Heinegg, Mohamed S. Helal, Christian Henderson, Etienne Henry, Alexandra Hofer, Jörg Kammerhofer, Maurice Kamto, Pierre Klein, Robert Kolb, Marcos Kotlik, Vaios Koutroulis, Claus Kreß, David Kretzmer, Dino Kristiotis, Jean-Christophe Martin, Lindsay Moir, Sean D. Murphy, Anne Lagerwall, Eliav Lieblich, Georg Nolte, Benjamin K. Nußberger, Mary Ellen O'Connell, Alexander Orakhelashvili, Ki-Gab Park, Mónica Pinto, Erin Pobjie, John Quigley, Aurora Rasi, Theresa Reinold, Natalino Ronzitti, Tom Ruys, Alison See, Ying Xiu, Paulina Starski, Raphaël Van Steenberghe, Christian J. Tams, Kinga Tibori-Szabó, Dire Tladi, Kimberley N. Trapp, Nicholas Tsagourias, Antonios Tzanakopoulos, Agatha Verdebout, Ugo Villani, Christian Walter, Marc Weller, Erika de Wet, Nigel White, Myra Williamson, Sir Michael Wood

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.

Children’s rights law is often studied and perceived in isolation from the broader field of human rights law. This volume explores the inter-relationship between children’s rights law and more general human rights law in order to see whether elements from each could successfully inform the other. Children’s rights law has a number of distinctive characteristics, such as the emphasis on the ‘best interests of the child’, the use of general principles, and the inclusion of ‘third parties’ (e.g. parents and other care-takers) in treaty provisions. The first part of this book questions whether these features could be a source of inspiration for general human rights law. In part two, the reverse question is asked: could children’s rights law draw inspiration from developments in other branches of human rights law that focus on other specific categories of rights holders, such as women, persons with disabilities, indigenous peoples, or older persons? Finally, the interaction between children’s rights law and human rights law – and the potential for their isolation, inspiration or integration – may be coloured or determined by the thematic issue under consideration. Therefore the third part of the book studies the interplay between children’s rights law and human rights law in the context of specific topics: intra-family relations, LGBTQI marginalization, migration, media, the environment and transnational human rights obligations.