Search

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy.This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

This chapter interrogates European law as actively contributing to the undermining of migrants’ rights, since its inception. It claims that European case law in the area of migration is a continuation of a pre-existing characteristic: the tendency to privilege the interests of European states over those of migrants and of Europeans with transnational ties. The chapter thus examines the hypothesis that current-day migrants, being people from former European colonies, are subjected to a split form of legality that was perfected at the end of the colonial era. The legal system maintains the pretence of equality before the law while at the same time relegating colonial subjects to sub-standard legal protection by either excluding them from the application of human rights standards altogether or by lowering these standards. In addition to these two elements, a third legal governance technique with its origins in colonialism is the use of emergency powers themselves. Coloniality thus remains a structuring element of human rights law as it responds to migration. Naming and exposing this colonial structure may be helpful to the extent that it makes a legal and political critique possible, in addition to helping actors to navigate the field.

Acts of repetition abound in international law. Security Council Resolutions typically start by recalling, recollecting, recognising or reaffirming previous resolutions. Expert committees present restatements of international law. Students and staff extensively rehearse fictitious cases in presentations for moot court competitions. Customary law exists by virtue of repeated behaviour and restatements about the existence of rules. When sources of international law are deployed, historically contingent events are turned into manifestations of pre-given and repeatable categories. This book studies the workings of repetition across six discourses and practices in international law. It links acts of repetition to similar practices in religion, theatre, film and commerce. Building on the dialectics of repetition as set out by Søren Kierkegaard, it examines how repetition in international law is used to connect concrete practices to something that is bound to remain absent, unspeakable or unimaginable.

Time is one of the most important means for the exercise of power. In Migration Law, it is used for disciplining and controlling the presence of migrants within a certain territory through the intricate interplay of two overlapping but contradicting understandings of time – human and clock time. This book explores both the success and limitations of the usage of time for the governance of migration. The virtues of legal time can be seen at work in several temporal differentiations in migration law: differentiation based on temporality, deadlines, qualification of time and procedural differentiation. Martijn Stronks contests that, hidden in the usage of legal time in Migration Law, there is an argument for the inclusion of migrants on the basis of their right to human time. This assertion is based in the finite, irreversible and unstoppable character of human time.

Undocumented immigrants are affected by citizenship boundaries, complicating their everyday lives. Precarious working conditions, social welfare, and security thoroughly impede their opportunities. However, understudied is the family context in which precarious immigrants live. Even though immigration and citizenship laws are directed towards individuals, they often affect the intimate domains of the family. The commonly held belief that criminalizing immigration would protect citizens while punishing immigrants denies the tight links that exists between these groups in practice. This chapter presents ‘spillover effects’ that the weaker legal status of the undocumented partner may have on the stronger legal status of the citizen or permanent resident partner in the European context. From a legal perspective, the effects of restrictions play out along several domains: access and treatment by welfare and social security, housing, and family law. Studying legal anomalies may serve as a lens to grasp the financial consequences of the distinctions between citizens and noncitizens.

Boëtius Epo is a jurist whose life reflects all areas of tension and all contrasts typical of the sixteenth century. Born in Friesland, in the Northern Netherlands, which were soon to struggle out of the grasp of the Spanish king, he was to find his ultimate destination in Douai, situated in the Southern Netherlands still under Spanish rule. In his young life attracted to the enticing approach of the awakening Reformation toward the primitive church, he nevertheless retraced his footsteps, recognizing the orthodox Catholicism in which he had been raised. More than that, he revealed himself as belonging to the considerably radical wing of the Counter-Reformation. In his scholarly attitude there was a certain ambiguity between, on the one hand, being inclined to adhere to a re–foundation (ressourcement) of the sources of canon law, especially the texts compiled in the Decretum Gratiani, and, on the other, still adhering to spurious texts, maybe because from an ideological viewpoint their content was dear to him.

The Dutch anti-revolutionary and Protestant thinker, historian, jurist, and politician Guillaume (Willem) Groen van Prinsterer (Voorburg, 21 August 1801 – The Hague, 19 May 1876) played an important role in the Netherlands after 1813, the period after the Batavian–French era. He came from an enlightened–conservative family from Holland. His father was a doctor and court physician and his mother was very wealthy. After finishing his studies at Leiden University, he graduated as a doctor of literature and law, and in 1823 became a lawyer in The Hague. He was a very gifted child who grew up to become a gentleman and mingled in high society, attending balls and parties. In 1827, he started working in Brussels and later became secretary to King William I (1829–1833). He married Betsy van der Hoop in 1828, a well-educated and pious woman. Groen van Prinsterer was a member of the Dutch Reformed Church, the same church as the royal family of the House of Orange-Nassau.

Zeger-Bernard van Espen was born in Leuven 8 July 1646 as son of the legal practitioner Joannes van Espen and his wife Elisabeth Zegers. He was the youngest of nine children. In 1656 he began attending the college of the Oratorians in Temse. In 1663 he entered ’t Varken (Pig College) in Leuven to study Philosophy at the Faculty of Arts. In 1665 he assumed clerical status, received a scholarship at the Heilige-Geestcollege (Holy Spirit College) and pursued his studies at the Faculty of Law. In 1670, after five years of studying canon law, he obtained the licentiate in both laws. In 1673, he was ordained priest and one year later he was appointed to the chair of the so-called ‘six weeks lectures’, an extraordinary professorship, meant for teaching an annual course during the academic holiday (August and September). In 1675 van Espen took his doctoral examinations and was promoted to doctor in both laws. From 1677 until 1703 he also delivered a weekly lecture in Church History in the Pauscollege (Pope’s College).

International legal scholars tend to think of their work as the interpretation of rules: the application of a law 'out there' to concrete situations. This book takes a different approach to that scholarship: it views doctrine as a socio-linguistic practice. In other words, this book views legal scholars not as law-appliers, but as constructing knowledge within a particular academic discipline. By means of three close-ups of the discourse on cyberwar and international law, this book shows how international legal knowledge is constructed in ways usually overlooked: by means of footnotes, for example, or conference presentations. In so doing, this book aims to present a new way of seeing international legal scholarship: one that pays attention to the mundane parts of international legal texts and provides a different understanding of how international law as we know it comes about.

Technological advances continue to produce massive amounts of information from a variety of sources about our everyday lives. The simple use of a smartphone, for example, can generate data on individuals through telephone records (including location data), social media activity, Internet browsing, e-commerce transactions, and email communications. Much attention has been given to expectations of privacy in light of this data collection, especially consumer privacy. Much attention has also been given to how and when government agencies collect and use this data to monitor the activities of individuals.In previous work, we discussed three aspects of data analytics in the context of intelligence agencies that matter, but are often overlooked: stages, numbers, and the human factor. We made the following observations. First, stages of the algorithmic process should be included in what legal constraints apply to these activities. Secondly, the law should take into account the difference between people and machines. Thirdly, the law should think more about numbers. Although each of these topics deserves further discussion, we focus in this chapter in particular on the first issue: stages.

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,”2 as the Manual itself terms them, actually “provid[e] international law advice”3 to states operating in cyberspace? Given the Manual’s own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare,4 one may indeed wonder whether states have used the Manual as intended—as a manual. However, to ask whether states have “accepted,” “follow,” “reject,” or “maintain a ‘wait and see’ approach toward the Tallinn Rules”5 does suppose that these are, in fact, rules. Though the authors remain notably quiet on what they think the status of the Tallinn Manual is, exactly, the repeated reference to the “Tallinn Rules,” the word “Rule Book” in the article’s title, and even the capitalization of the word itself—“Rules”6—all suggest that the authors consider the Manual to be at the very least “a normative point of reference.”7 I don’t question the correctness of that assumption. The point of this essay is not to assess whether the Manual “got the law right,” or to point out that the experts are “really” doing lex ferenda rather than lex lata.8 I do argue, however, that the authors’ quiet acquiescence to what the Manual itself says it is becomes problematic when one considers the dictates of the Manual as a form. What I mean to say is that the Manual must claim, for reasons I will go into below, that it restates lex lata. This dictate of the form not only provokes the kind of research question that Efrony and Shany ask, but it also goes a very long way in predetermining their answers. In order to show why this is the case, I will first ask what is implied in the Manual as a form for international legal writing. The second part of the essay then discusses the way Efrony and Shany themselves refer to the Manual. Their failure to question the Manual’s form is problematic the moment we realize what follows from the claims the Tallinn Manual makes about what it is (for). This also means that the answer to their research question seems in some ways inevitable. In conclusion, perhaps we could even say that, however paradoxical it may seem, the demands of the Manual as a form preordain its own desuetude.

This article discusses the concept of misrecognition to analyse international legal ordering in the practice of colonial treatymaking. As critical interventions to the debate on recognition have made clear, recognition is about exclusion as much as it is about inclusion. The most obvious example is the nineteenth-century applications of the standard of civilisation, where the European Family of Nations introduced the criterion of ‘civilisation’, which excluded non-European entities as sovereigns and legitimised their colonisation. But at the same time colonial treaties included the ‘savage rulers’ as signatory powers, and thus legal persons within the international legal order that at once excluded them. This contribution to the Special Issue discusses these treatymaking practices as a practice of misrecognition; not because it misrecognises some natural, essential, or true identity of the indigenous entities, but as a misrecognition of the international order’s own conditions of possibility through practices that simultaneously constitute that order and undermine its constitutive conditions. A rereading of Hegel’s famous master–slave metaphor through the concept of misrecognition sheds light on the reversals and contradictions of the colonial legal enterprise and reveals the aporia of the contemporary international legal order by showing the void at its heart.

As the use of the Internet and online platforms grows, the scale of collecting and processing personal data and turnovers have increased correspondingly.1At the same time, public awareness about the Internet turning into a genuine profiling and advertisement machine, as well as a powerful surveillance instrument, grows. More people today are concerned about the ways in which public and private actors store and use private information. Many individuals note that they lose sight of the consequences once they give consent to the collection of their sometimes most intimate personal data. The Snowden revelations and the recent Facebook and Cambridge Analytica scandal have only reinforced this public awareness.Objections against these data processing practices cannot be explained as breaches of data protection or privacy regulation alone. In this Article, it is argued that recently passed regulations fail to solve the unease of data subjects as other, more fundamental values are at stake here. A different or complementary ethical and legal framework is needed to interpret this generally felt unease vis-à-vis current data practices and secondly to confront future developments on the data market. The concept of human dignity may be a helpful perspective in this respect. In the context of data processing, human dignity is generally interpreted in a quite specific manner, such as contributing to the empowerment and self-determination of autonomous individuals. It can be argued, however, that human dignity—in the context of the commodification and commoditization of online personal data—should be seen in a different, quite opposite, light. In sum, future regulation of privacy and data protection attention should shift towards more constraining dimensions of human dignity.

In this chapter on human germline editing in The Netherlands, we first discuss the Dutch legal framework and the institutional environment regulating research involving human gametes and embryos. We then focus on legal provisions within the regulation of human germline editing. Here we show that within Dutch law, embryos and fetuses are not regarded as legal subjects with independent legal rights. However, unborn human life, even in early stages, is not treated as just a legal object either. With regard to human germline editing, two bans dominate the national legislative and policy framework: the ban on intentionally modifying the genetic material of the nucleus of human germline cells for reproductive purposes, and the ban on the creation of embryos for research. Finally, we offer an overview and analysis of current public and political debates on this technology in the light of the tensions between self-determination and reproductive autonomy on the one hand (the ‘medical ethics regime’), and human dignity and respect for human life on the other (the ‘human rights regime’). We conclude with our suggestion that, in order to make this debate more inclusive and balanced, both the human rights perspective and the medical-ethical perspective should be properly represented.

On 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) convicted Germain Katanga for war crimes and crimes against humanity. Katanga's conviction is based on the concept of common purpose liability as regulated in Article 25(3)(d) of the Rome Statute. This liability theory establishes criminal responsibility for wilfully or knowingly contributing to the crimes of a group of persons who act together pursuant to a common purpose. The ICC regards common purpose liability as a residual liability theory, which provides for a lower level of blameworthiness than principal forms of criminal responsibility, such as joint perpetration. This article appraises the residual and inferior status of common purpose liability by comparing the ICC's application of common purpose liability and joint perpetration. The comparison makes clear that common purpose liability in theory stipulates loweractus reusandmens reastandards than joint perpetration. However, in practice the ICC applies the requirements of both these liability theories in a context-dependent way in interplay with the particular facts of individual cases. It can therefore not be concluded in general terms that common purpose liabilityby definitionconstitutes a less serious type of criminal responsibility than joint perpetration. Instead, it is preferable to adopt a flexible approach, which recognizes that common purpose liability covers a variety of conduct entailing different levels of blameworthiness.

With more than 158,000 treaties and some 125 judicial organisations, international law has become an inescapable factor in world politics since the Second World War. In recent years, however, international law has also been increasingly challenged as states are voicing concerns that it is producing unintended effects and accuse international courts of judicial activism. This book provides an important corrective to existing theories of international law by focusing on how states respond to increased legalisation and rely on legal expertise to manoeuvre within and against international law. Through a number of case studies, covering a wide range of topical issues such as surveillance, environmental regulation, migration and foreign investments, the book argues that the expansion and increased institutionalisation of international law itself have created the structural premise for this type of politics of international law. More international law paradoxically increases states' political room of manoeuvre in world society.

Traditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Alvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position-but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community. © 2014 Foundation of the Leiden Journal of International Law.

For decades, Martti Koskenniemi has not just been an influential writer in international law; his work has caused a significant shift in the direction of the field. This book engages with some of the core questions that have animated Koskenniemi's scholarship so far. Its chapters attest to the breadth and depth of Koskenniemi's oeuvre and the different ways in which he has explored these questions. Koskenniemi's work is applied to a wide range of functional areas in international law and discussed in relation to an even broader range of theoretical perspectives, including history, political theory, sociology and international relations theory. These invaluable insights have been expertly brought together by the volume editors, who identify the key and common themes of many of the book's contributions. This volume demonstrates the importance of critical legal scholarship in the ways international law is enacted, shaped and reshaped over time.