Research & publications 2015

Tom Ruys Eduard Somers
"UNCLOS rules the waves"

The twentieth anniversary of the entry into force of the Montego Bay Convention - State of Affairs and Challenges ahead?

This special issue of the Revue belge de droit international features a range of contributions on the UN Convention on the Law of the Sea, dealing inter alia with the permissibility of military activities in the EEZ, the use and abuse of the UNCLOS dispute settlement regime, etc.

The compilation of papers, edited by Tom Ruys, results from a two-day international conference organized at Ghent University in November 2014 (UNCLOS rules the waves).

Contributing authors include Tom Ruys, John Noyes, Wolff Heintschell von Heinegg, Jonathan Odom, Douglas Guilfoyle, Edouard Somers, Michael Lodge, David Vanderzwaag, Erik Franckx, Alan Boyle, Philippe Gautier and ITLOS President Vladimir Golitsyn.

Tom Ruys Nele Verlinden Luca Ferro
JUFIL - new issue now out

JUFIL Digest of State Practice - 1 January - 30 June 2015

The latest issue of the Journal on the Use of Force and International Law (JUFIL - Routledge) is now available online. The issue includes contributions by Alexander Orakhelashvili, Fiammetta Borgia and Kimberley Trapp, as well as a guest editorial by Benjamin Ferencz. The issue also features the latest Digest of State Practice, covering the period 1 January - 30 June 2015, edited by GRILI members Tom Ruys and Luca Ferro, and by Nele Verlinden.

Yves Haeck Oswaldo Ruiz-Chiriboga Clara Burbano Herrera
The Inter-American Court of Human Rights: Theory and Practice, Present and Future

Intersentia, 2015, 832 p.

Drawing on the case-law of the Court, this volume analyses crucial developments over the years on both procedural and substantive issues before the Inter-American Court

Along with the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights serves as the main watchdog for the promotion and protection of fundamental rights in the Americas. Drawing on the case law of the Court, this volume analyses crucial developments over the years on both procedural and substantive issues before the Inter-American Court. The book discusses access to legal aid, third party interventions, positive obligations and provisional measures, the evaluation of evidence and the use of external referencing by the Court, the protection of vulnerable groups, including indigenous peoples, migrants, women and children. It also explores other contemporary issues such as coerced statements, medical negligence, the use of force, amnesties, forced disappearances, the right to water, judicial protection in times of emergency, the relation of the Inter-American Court with national courts and with other international jurisdictions like the European Court of Human Rights and the International Criminal Court, and with national courts, reparations and revisions of cases by the Inter-American Court, and present-day challenges to the Inter-American system of human rights. Due to its multifaceted and comprehensive character, this scholarly volume is an essential reference work for both legal scholars and practitioners working with regional human rights systems in general and with the Inter-American human rights system in particular.

Ellen Desmet Wouter Vandenhole Didier Reynaert Sara Lembrechts
Routledge international handbook of children's rights studies

Routledge, 2015, 436 p.

Since the adoption of the UN Convention on the Rights of the Child (1989) children’s rights have assumed a central position in a wide variety of disciplines and policies.

This handbook offers an engaging overview of the contemporary research landscape for those people in the theory and practice of children’s rights. The volume offers a multidisciplinary approach to children’s rights, as well as key thematic issues in children’s rights at the intersection of global and local concerns. The main approaches and topics within the volume are:

• Law, social work, and the sociology of childhood and anthropology
• Geography, childhood studies, gender studies and citizenship studies
• Participation, education and health
• Juvenile justice and alternative care
• Violence against children and female genital mutilation
• Child labour, working children and child poverty
• Migration, indigenous children and resource exploitation

The specially commissioned chapters have been written by renowned scholars and researchers and come together to provide a critical and invaluable guide to the challenges and dilemmas currently facing children’s rights.

Cedric De Koker
Hassan v. United Kingdom

the Interaction of Human Rights Law and International Humanitarian Law with regard to the Deprivation of Liberty in Armed Conflicts

(2015) 31(81) Utrecht Journal of International and European Law 90

In Hassan v United Kingdom, the Grand Chamber of the European Court of Human Rights reviewed the deprivation of liberty of a young male by British armed forces during the phase of active hostilities in Iraq, which had raised issues relating to extraterritoriality, the right to liberty and security in times of armed conflict and the relationship between international humanitarian law (IHL) and human rights law (HRL). In its judgment of 16 September 2014, the Court ruled that by reason of the co-existence of the safeguards provided by IHL and by the European Convention on Human Rights (ECHR) in time of armed conflict, the grounds of permitted deprivation of liberty found in both bodies of law should, as far as possible, be accommodated and applied concomitantly. The greatest merit of the judgment is that for the first time it explicitly offered its view on the interaction between IHL and HRL and did not rely on the lex specialis principle, the traditional but flawed method for explaining the relationship between these spheres of law. However, the judgment is also a missed opportunity as the Court limited its analysis to the case at hand and provided limited guidance for the future, leaving a number of questions unaddressed.

Klaas Willaert
Compensation for pirates:

justice or topsy-turvy world?


In December 2014, the European Court of Human Rights decided in Ali Samatar and Others v. France and Hassan and Others v. France that France had violated the rights of pirate suspects and needed to pay a compensation to these ‘victims’. Both cases concerned similar situations, where Somali pirate suspects were held in custody for too long before they were formally charged or brought before a judge. According to some, the judgments are completely in line with the European practice of human rights protection, yet others consider them to be totally incomprehensible and disastrous for the global fight against piracy. It indeed needs to be stressed that prosecution and punishment of piracy is already a difficult story, so additional impediments should be avoided. The European Court of Human Rights needs to look at the bigger picture and has to be conscious of the negative effects of rigorous jurisprudence in piracy cases. After all, the stern attitude of the Court may not only cause more difficulties in the fight against piracy, but can also lead to bigger excesses with regard to human rights.

Lieselot Verdonck
Coherence in the EU’s External Human Rights Policy

The Case of the Democratic Republic of the Congo

(2015) European Foreign Affairs Review. 20(3). p.379-397

Protecting and promoting human rights is at the forefront of the European Union’s (EU) foreign policy. Although the former pillar structure was abolished by the Treaty of Lisbon, EU external action continues to be characterized by a multiplicity of institutional actors and policy instruments and by a complexity of applicable procedures. Nevertheless, the EU is legally obliged to conduct a coherent policy. The pressing question is thus whether the EU truly has ‘a’ external human rights policy. In search of the opportunities for and obstacles to coherence, this paper examines the bilateral relationships between the EU and the Democratic Republic of the Congo (the DRC). The analysis is structured according to the three mechanisms that are at the EU’s disposal for protecting and promoting human rights in third countries, notably conditionality, positive measures and defence actions.

Salvo Nicolosi
Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law:

The Role of Regional Human Rights Systems

(2015) International Human Rights Law Review, Volume 4, Issue 2, p. 303 – 332

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

Salvo Nicolosi
The treatment of irregular migrants in the Inter-American Human Rights and European Union case law

two parallel lines may even meet

(2015) 35 years of inter-American court of Human Rights : theory and practice, present and future. p.1-32

Frank Maes Z. Kyriazi R. Lejano S. Degraer
Bargaining a net gain compensation between a marine renewable energy developer and a marine protected area manager

(2015) Marine Policy 60, p. 40 - 48

When the development of marine renewable energy (MRE) is only possible inside already established marine protected areas (MPAs), and there is a risk of ecosystem loss, environmental or monetary compensation -being the last step in a hierarchy of mitigation measures- might be an option for working out a trade-off between energy production and nature protection. In this article, it is argued that for this type of siting situation, instead of the well-established strategy of no net loss, a net gain should be provided from the MRE developer to the MPA manager, which acts as an incentive for the manager to cooperate and covers future potentially lost conservation benefits due to MRE potential damages. Based on this argument, a hypothetical example is used to demonstrate that a net gain is ensured only when there is a societal surplus from a combined MRE-MPA arrangement that can be divided between the players through bargaining. However, when asymmetric information is involved, it is shown that cooperative solution concepts are more sufficient for leaving both players better off after coexistence than before.

Frank Maes An Cliquet
Recht door zee. Hedendaags internationaal zee- en maritiem recht

Liber Amicorum Eddy Somers

Het recht van de zee, zowel op internationaal als nationaal vlak, is blijvend in evolutie. Naar aanleiding van het emeritaat van professor Eddy Somers, expert in internationaal zee- en maritiem recht, stelden An Cliquet en Frank Maes een uniek liber amicorum samen, met actuele ontwikkelingen in het internationaal zeerecht en het maritiem recht.

Een eerste deel handelt over ontwikkelingen in het internationaal zeerecht en gaat in op de toepassing van het Zeerechtverdrag op Arctica, mariene ruimtelijke planning, mariene gebiedsbescherming, mensensmokkel op zee, piraterij, hulp en bijstand.

Een tweede deel gaat in op het maritiem recht en omvat bijdragen inzake beveiliging van Belgische schepen, bewarend beslag op zeeschepen, ‘transportfacilitatie’, staking in de haven en de regionalisering van de binnenvaart.

In een derde deel komen een aantal ruimere maritieme thema’s aan bod: de historiek van de breedte van de territoriale zee, havenplanologie in Vlaanderen, scheepsafval en havenontvangstinstallaties, veiligheidsmaatregelen in de havens, samenwerking tussen Vlaanderen en Nederland inzake de Schelde en de estuaire vaart.

Het geheel is opgevat als eigentijds handboek, rijk gestoffeerd voor iedereen met interesse in de zee en het zeerecht, voor academici en mensen in de praktijk! Met bijdragen van Erik Franckx, Fanny Douvere, Frank Maes, An Cliquet, Jasmine Coppens, Klaas Willaert, Gwen Gonsaeles, Walter P. Verstrepen, Clive van Aerde, Kristiaan Bernauw, Patrick Humblet, Marc De Decker, J.W.P. Prins, Jozef Cuyt, Georges Allaert, Guido Van Meel, Dirk Vernaeve, Jacques D’Havé, Antoine Vuylsteke en Marc Vantorre.

An Cliquet Nicky Broeckhoven
Gender and ecological restoration:

time to connect the dots

(2015) RESTORATION ECOLOGY. Volume 23, Issue 6, pages 729–736

Although the human dimension of ecological restoration has increasingly been recognized in recent years, the gender dimension thereof remains largely unexplored. This article aims to fill this gap in the literature by providing an overview of the current knowledge on gender and ecological restoration.Our analysis of selected academic literature on ecological restoration revealed that scholars have only marginally addressed gender issues in their publications. However, in restoration practice, various initiatives that highlight the importance of including a women’s rights and gender perspective can be found. These initiatives seem to indicate that applying a gender approach to restoration practice creates a double benefit. First, integrating gender considerations into restoration efforts is desirable from a human rights and gender equality perspective. Second, different case studies suggest that integrating gender considerations can promote the efficiency and effectiveness of restoration work. Integrating a social and gender dimension into restoration policy and practice should therefore be recommended. This integration process can learn from a wide range of literature on gender and the environment, and from existing practices of gendermainstreaming in this field. Furthermore, international law provides useful policy intentions on gender and restoration that could be used as entry points. To conclude, this article summarizes the main challenges for “connecting the dots” between gender and ecological restoration and formulates some recommendations for the Society for Ecological Restoration.

Ellen Desmet Hanne Op de beeck Wouter Vandenhole
Walking a tight rope

Evaluating the child and youth impact report in Flanders


In Flanders, a child and youth impact report (JoKER) must accompany all legislative proposals based on an initiative of the Flemish government, that have a direct impact on the interests of persons under the age of 25. This article presents the results of the first in-depth evaluation carried out of this impact assessment instrument. Based on multiple data collection techniques (including an electronic survey and focus groups), JoKER was critically evaluated as to its scope, quality, process, support and control, effectiveness and impact. The evaluation required maintaining a balance between various perspectives and tensions. A major challenge concerns the tension between mainstreaming JoKER in the more general regulatory impact assessment (ria), on the one hand, and preserving the specificity of a youth and childrens rights perspective, on the other.

Lieselot Verdonck
Human rights in the age of economic globalization: the case of the Mogalakwena mine, South Africa

HR&ILD 9(1) (2015): 34-66

The mineral industry is one of the strongholds of South Africa’s emerging economy. Nevertheless, the country is increasingly facing the adverse effects of unsustainable mining projects that insufficiently take into account the social and environmental impact of the quest for economic growth. One approach to analysing this problem takes the perspective of human rights law. Through the study of a particular case where local communities are opposing these adverse impacts of mining, this paper explores the responsibilities of the various actors involved, both state and non-state actors. Such an analysis demonstrates that holding South Africa to account for its human rights obligations is a necessary but insufficient step in establishing a comprehensive framework that ensures that powerful corporate actors respect human rights. The international human rights system can learn lessons from the South African experience, where the judiciary plays an important role in making rights real for the poor and vulnerable groups that are directly exposed to the adverse impacts of unsustainable development.

Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?

Utrecht Journal of International and European Law. 31(81), pp.46–67

By ratifying the Aarhus Convention in 2005 the EU committed itself to guaranteeing broad access to justice in environmental matters both at the national and the EU level. Yet, in spite of the clear-cut obligations incumbent upon the EU, EU courts have consistently rebuked pleas for a softening of the standing requirements in the context of direct actions against EU acts that might have an impact on the environment and/or public health. In addition, the internal review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively by the EU institutions that that its added value in the stride toward better access to courts in environmental matters remains ephemeral at best.

This led the General Court to finding that the Aarhus Regulation, by excluding general EU acts from the scope of internal review, was in breach of Article 9(3) of the Aarhus Convention. In its recent rulings of 13 January 2015, however, the Court of Justice of the EU (CJEU) overruled the General Court by holding that the Aarhus Regulation could not be reviewed in light of the Aarhus Convention. With its refusal to use Article 9(3) of the Aarhus Convention as a reference criterion for the purpose of reviewing the EU’s compliance with the Aarhus Convention’s obligations, the CJEU avoided tackling the unsatisfactory level of judicial protection in environmental cases at the EU level.

This paper argues that the rulings of the CJEU are to be qualified as a significant step backwards for judicial protection in environmental matters at the EU level. It is established that, instead of addressing the current failings of the EU with respect to access to justice in environmental cases, the CJEU’s hands-off approach paves the way for yet another decade of non-compliance by the EU in the realm of access to justice in environmental cases.