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Article

Control in International Law

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood
Authors Joseph Rikhof and Silviana Cocan
AbstractAuthor's information

    The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions.


Joseph Rikhof
Joseph Rikhof is an adjunct professor at the Common Law Faculty of the University of Ottawa.

Silviana Cocan
Silviana Cocan holds a double doctoral degree in international law from the Faculty of Law of Laval University and from the Faculty of Law and Political Science of the University of Bordeaux.
Article

Access_open Het 100-jarige bestaan van de Vereeniging voor Wijsbegeerte des Rechts

Journal Netherlands Journal of Legal Philosophy, Issue 2 2019
Keywords oprichting, doelstelling, band met de rechtspraktijk, rechtsfilosofie en rechtstheorie, internationalisering (van Duits naar Engels)
Authors Corjo Jansen
AbstractAuthor's information

    De Vereeniging voor Wijsbegeerte des Rechts (VWR) is opgericht op 28 december 1918. Zij had tot doel de studie van de rechtsfilosofie en het maatschappelijk leven. Deze studie moest tevens relevant zijn voor de rechtspraktijk. Vanaf haar oprichting kende de VWR een sterke internationale oriëntatie, aanvankelijk gericht op Duitsland, later vooral op het Verenigd Koninkrijk en de VS. In de jaren zeventig en tachtig van de vorige eeuw beleefde de VWR wat betreft belangstelling en ledenaantal haar hoogtepunt. In 2016 besloot zij – na een gestage neergang – de band met de Nederlandstalige (praktijk)jurist weer aan te halen.


Corjo Jansen
Corjo Jansen is hoogleraar Rechtsgeschiedenis en Burgerlijk recht en voorzitter van het Onderzoekcentrum Onderneming & Recht van de Radboud Universiteit Nijmegen.

    In dit artikel wordt de waarde van het instituut parlement verkend. Daartoe analyseert de auteur eerst een lezing die de Nederlandse staatsrechtsgeleerde C.W. van der Pot in 1925 over dit thema hield bij de VWR. Vervolgens wordt Van der Pots opvatting gecontrasteerd met de diametraal tegengestelde benadering van Carl Schmitt, die zich, rond dezelfde tijd, over dit vraagstuk boog in Duitsland. Tot slot schetst de auteur, via een alternatieve, wellicht excentrieke, interpretatie van Schmitt waar een belangrijke waarde van het moderne parlement zou kunnen liggen.


Bastiaan Rijpkema
Bastiaan Rijpkema is universitair docent aan de afdeling Encyclopedie van de Rechtswetenschap van de Universiteit Leiden.
Article

The Smuggling of Migrants across the Mediterranean Sea

A Human Rights Perspective

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords smuggling, refugees, migration, readmission, interceptions
Authors J. Shadi Elserafy LL.M.,
AbstractAuthor's information

    Irregular migration by sea is one of the most apparent contemporary political issues, and one that entails many legal challenges. Human smuggling by sea is only one aspect of irregular migration that represents a particular challenge for States, as sovereignty and security interests clash with the principles and obligations of human rights and refugee law. In dealing with the problem of migrant smuggling by sea, States have conflicting roles, including the protection of national borders, suppressing the smuggling of migrants, rescuing migrants and guarding human rights.
    The legal framework governing the issue of migrant smuggling at sea stems not only from the rules of the law of the sea and the Smuggling Protocol but also from rules of general international law, in particular human rights law and refugee law. The contemporary practice of States intercepting vessels engaged in migrant smuggling indicates that States have, on several occasions, attempted to fragment the applicable legal framework by relying on laws that allow for enhancing border controls and implementing measures that undermine obligations of human rights and refugee law. This article seeks to discuss the human rights dimension of maritime interception missions and clarify as much as possible the obligations imposed by international law on States towards smuggled migrants and whether or not these obligations limit the capacity of States to act.


J. Shadi Elserafy LL.M.,
LL.M., Judge/Counselor at The Egyptian Council of State (The Higher Administrative Court of Justice).
Human Rights Literature Reviews

Estonia

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Ingrid Kauler LLM
Author's information

Ingrid Kauler LLM
LLM (Advanced) on European and International Human Rights Law, Leiden University; Lawyer; Lecturer on EU Law, Tallinn University School of Governance, Law and Society; Study and Program Administrator for Master’s programmes in Law, Faculty of Law, Economics and Finance, University of Luxembourg.
Article

On Lessons Learned and Yet to Be Learned

Reflections on the Lithuanian Cases in the Strasbourg Court’s Grand Chamber

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords human rights, European Convention on Human Rights, European Court of Human Rights, Lithuania
Authors Egidijus Kūris
Abstract

    During the two-and-a-half decades while Lithuania has been a party to the European Convention on Human Rights, the Grand Chamber of the European Court of Human Rights has decided five Lithuanian cases. They all (perhaps but one) raised controversial issues not only of law but also of those pertaining to matters non-legal: psychology, politics, history and so on. There had been follow-ups to most of them, allowing for consideration as to the merits and disadvantages of the respective judgments. These cases are narrated on in their wider-than-legal context and reflected upon from the perspective of their bearing on these issues and of the lessons they taught both to Lithuania, as a respondent State, and to the Court itself.


Egidijus Kūris
Article

Primus Inter Pares? In Search of ‘Fundamental’ Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords hierarchy, jus cogens, International Court of Justice, European Court of Human Rights, Inter-American Court of Human Rights
Authors Julia Kapelańska-Pręgowska
AbstractAuthor's information

    International human rights law is one of the most developed and codified regimes (branches) of public international law. Since 1948 and the adoption of the Universal Declaration of Human Rights, the number and scope of human rights standards evolved considerably. Prima facie this tendency reflects a generally positive phenomenon and is driven by the human rights approach in international law, but at the same time it may raise questions of the system’s efficiency, internal coherence, hierarchy of rights and mechanisms of protection and monitoring. Against the richness of human rights standards, designations such as ‘fundamental’, ‘essential’, ‘basic’, ‘crucial’ or ‘core’ are being used and ascribed to diverse concepts (inter alia, customary international human rights, erga omnes obligations, non-derogable rights, jus cogens or absolute rights). The article explores the provisions of general human rights instruments – the UDHR, the two Covenants and regional treaties, as well as relevant case-law of the ICJ, ECtHR and IACtHR in search of a definition and catalogue of fundamental human rights.


Julia Kapelańska-Pręgowska
Chair of Human Rights, Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Poland.
Article

Access_open Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court

Journal Erasmus Law Review, Issue 1 2019
Keywords international business courts, Netherlands Commercial Court, choice of court, recognition and enforcements of judgements
Authors Eddy Bauw
AbstractAuthor's information

    The judicial landscape in Europe for commercial litigation is changing rapidly. Many EU countries are establishing international business courts or have done so recently. Unmistakably, the approaching Brexit has had an effect on this development. In the last decades England and Wales – more precise, the Commercial Court in London - has built up a leading position as the most popular jurisdiction for resolving commercial disputes. The central question for the coming years will be what effect the new commercial courts in practice will have on the current dominance of English law and the leading position of the London court. In this article I address this question by focusing on the development of a new commercial court in the Netherlands: the Netherlands Commercial Court (NCC).


Eddy Bauw
Professor of Private Law and Administration of Justice at Molengraaff Institute for Private Law and Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University. Substitute judge at the Court of Appeal of Arnhem-Leeuwarden and the Court of Appeal of The Hague.
Article

Access_open The Brussels International Business Court: Initial Overview and Analysis

Journal Erasmus Law Review, Issue 1 2019
Keywords international jurisdiction, English, court language, Belgium, business court
Authors Erik Peetermans and Philippe Lambrecht
AbstractAuthor's information

    In establishing the Brussels International Business Court (BIBC), Belgium is following an international trend to attract international business disputes to English-speaking state courts. The BIBC will be an autonomous business court with the competence to settle, in English, disputes between companies throughout Belgium. This article focuses on the BIBC’s constitutionality, composition, competence, proceedings and funding, providing a brief analysis and critical assessment of each of these points. At the time of writing, the Belgian Federal Parliament has not yet definitively passed the Bill establishing the BIBC, meaning that amendments are still possible.


Erik Peetermans
Erik Peetermans is a legal adviser at the Federation of Enterprises in Belgium (FEB).

Philippe Lambrecht
Philippe Lambrecht is the Director-Secretary General at the Federation of Enterprises in Belgium (FEB).
Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).
Article

Access_open Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial courts, international business courts, third parties, third party joinder, recognition and enforcement
Authors Drossos Stamboulakis and Blake Crook
AbstractAuthor's information

    In this article we explore the approach of the Singapore International Commercial Court (the ‘SICC’) to jurisdiction and joinder of non-consenting parties, and way that any resulting judgments are likely to be treated by foreign enforcing courts. This novel juncture arises as international commercial courts, such as the SICC, rely predominantly upon party autonomy to enliven their jurisdiction over disputants. This does not require any territorial link of the parties or the dispute to the host jurisdiction (Singapore). At the same time, however, the SICC is granted a mandate under Singaporean law to join non-consenting parties, again with no necessary territorial link. Where such joinder occurs, any resulting judgment is likely to face significant difficulties if recognition and enforcement is sought outside of Singapore. To support this argument, we first set out the ways in which non-consenting disputants may be joined to proceedings before the SICC, and offer some initial thoughts on how these powers are likely to be exercised. Second, we argue that any such exercise of jurisdiction – that lacks either territorial or consent-based jurisdiction grounds – is unlikely to gain support internationally, by reference to transnational recognition and enforcement approaches, and the SICC’s most likely recognition and enforcement destinations. Finally, we offer some concluding remarks about the utility of international commercial court proceedings against non-consenting parties, including the possibility they may impact on domestic recognition and enforcement approaches in foreign States.


Drossos Stamboulakis
B.Com, LLB (Hons) (Monash); LLM (EMLE); Law Lecturer, USC School of Law (University of the Sunshine Coast, Australia)

Blake Crook
PhD Candidate, Faculty of Law (University of Melbourne, Australia), B.Com (Acc), LLB (Hons) (Sunshine Coast).
Editorial

Access_open International Business Courts in Europe and Beyond: A Global Competition for Justice?

Journal Erasmus Law Review, Issue 1 2019
Keywords international business courts, justice innovation, justice competition, global commercial litigation, private international law
Authors Xandra Kramer and John Sorabji
Author's information

Xandra Kramer
Xandra Kramer, Professor of Private Law at Erasmus University Rotterdam, and of Private International Law, Utrecht University.

John Sorabji
John Sorabji, Senior Teaching Fellow, UCL, London/Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls.
Article

Access_open The Court of the Astana International Financial Center in the Wake of Its Predecessors

Journal Erasmus Law Review, Issue 1 2019
Keywords international financial centers, offshore courts, international business courts, Kazakhstan
Authors Nicolás Zambrana-Tévar
AbstractAuthor's information

    The Court of the Astana International Financial Center is a new dispute resolution initiative meant to attract investors in much the same way as it has been done in the case of the courts and arbitration mechanisms of similar financial centers in the Persian Gulf. This paper examines such initiatives from a comparative perspective, focusing on their Private International Law aspects such as jurisdiction, applicable law and recognition and enforcement of judgments and arbitration awards. The paper concludes that their success, especially in the case of the younger courts, will depend on the ability to build harmonious relationships with the domestic courts of each host country.


Nicolás Zambrana-Tévar
LLM (LSE), PhD (Navarra), KIMEP University.
Article

Access_open The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?

Journal Erasmus Law Review, Issue 1 2019
Keywords Commercial contracts, Enforcement, Jurisdiction, Specialized courts, India
Authors Sai Ramani Garimella and M.Z. Ashraful
AbstractAuthor's information

    The liberal globalised order has brought increased focus on the regulation of international commerce, and especially dispute resolution. Enforcement of contracts has been a concern largely owing to the insufficiencies of the legal systems, especially relating to the institutional structure, and it holds true for India as well. The commercial courts mechanism – international and domestic – with innovative features aimed at providing expedited justice is witnessing much traction. India, similar to many other jurisdictions, legislated in favour of specialized dispute resolution mechanisms for commercial disputes that could help improve the procedures for enforcement of contracts. This research attempts to critique the comparable strengths and the reform spaces within the Indian legislation on commercial courts. It parses the status of commercial dispute resolution in India especially in the context of cross-border contracts and critiques India’s attempt to have specialised courts to address commercial dispute resolution.


Sai Ramani Garimella
Sai Ramani Garimella, PhD, is assistant professor of the faculty of legal studies at the South Asian University in New Delhi.

M.Z. Ashraful
M.Z. Ashraful is the research student at South Asian University in New Delhi.
Article

Access_open International Commercial Courts in France: Innovation without Revolution?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, dispute resolution, business court, Brexit, judicial system
Authors Alexandre Biard
AbstractAuthor's information

    In 2018, in the wake of Brexit, the French legal profession took several important measures to strengthen the competitiveness of France and the French legal system, and to make Paris an attractive go-to-point for businesses when the latter have to deal with international commercial litigation. When taking a closer look at it, Brexit is only the top of the iceberg, and has mostly served as a catalyst. Reasons explaining the development of international commercial courts in France are manifold. They are consequences of long-standing efforts aimed at boosting the French judicial marketplace to adapt it to the requirements of globalization and to the expectations of multinational corporations. The setting-up of the French international business courts has made several procedural adjustments necessary. Although the latter undoubtedly represent clear innovations, they however do not constitute a full-blown revolution. France has indeed decided to maximize already-existing procedural rules, combined with a new organisational format inspired by the Common Law tradition. If it remains too early to draw clear conclusions on the impact of these new developments, it is essential to keep our ears to the ground, and to be forward-looking. We should carefully consider the possible side-effects on the French justice system considered as a whole, and in particular wonder whether these international commercial courts might in the future open the door to broader far-reaching evolutions within the judicial system. Finally, the multiplication of international business courts across Europe nowadays triggers some questions concerning the role and potential added value of an EU initiative in this domain.


Alexandre Biard
Postdoctoral researcher, Erasmus University Rotterdam.
Article

Reconciliation potential of Rwandans convicted of genocide

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Rwanda, genocide, perpetrators, posttraumatic stress, reconciliation
Authors Kevin Barnes-Ceeney, Laurie Leitch and Lior Gideon
AbstractAuthor's information

    This study examines the reconciliation potential of Rwandans incarcerated for the crime of genocide. Utilising survey data from 302 male and female prisoners incarcerated in the Rwandan Correctional System, this study explores genocide perpetrators’ depression, anxiety, anger-hostility and somatic symptoms, levels of posttraumatic stress, degree of social support and attitudes towards unity and reconciliation. The data demonstrate that engaging in killing can have deep psychological impacts for genocide perpetrators. The data indicate that although more than two decades have passed since the genocide, perpetrators are experiencing high levels of genocide-related posttraumatic suffering. Perpetrators are persistently re-experiencing genocide, purposefully avoiding thoughts and memories of the genocide, and experiencing physical and emotional arousal and reactivity. The sample had a strong desire for all Rwandans to live in peace and unity. There is, however, an urgent need for physical and mental health interventions, as well as services that facilitate the rebuilding of family relationships well in advance of release. Improving the physical and mental well-being of both perpetrators of the genocide and victims can only be a positive development as Rwanda continues to build a unified, reconciled and resilient future.


Kevin Barnes-Ceeney
Kevin Barnes-Ceeney is Assistant Professor at the Henry C. Lee College of Criminal Justice and Forensic Sciences, University of New Haven, West Haven, USA.

Laurie Leitch
Laurie Leitch is Director, Threshold GlobalWorks, New York, USA.

Lior Gideon
Lior Gideon is Professor of Criminal Justice at the Department of Law, Police Science and Criminal Justice Administration at John Jay College of Criminal Justice, New York, USA.
Article

Listening deeply to public perceptions of Restorative Justice

What can researchers and practitioners learn?

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Public perception, media, apophatic listening, online comments, understandings of restorative justice
Authors Dorothy Vaandering and Kristin Reimer
AbstractAuthor's information

    This article explores public perceptions of restorative justice through the examination of media articles and negative online reader comments surrounding a high-profile incident in a Canadian university in which a restorative process was successfully engaged. Utilising relational discourse analysis, we identify how restorative justice is presented in the media and how that presentation is taken up by the public. Media representations of restorative justice create understandings among the public that are profoundly different from how many restorative justice advocates perceive it. The aim of this article is to examine media representations of restorative justice and how these are received by the public so that we can respond constructively.


Dorothy Vaandering
Dorothy Vaandering, Ph.D., is an Associate Professor at the Faculty of Education, Memorial University of Newfoundland, St. John’s, Canada.

Kristin Reimer
Kristin Reimer, Ph.D., is a lecturer in Restorative Justice and Relational Pedagogies at the Faculty of Education, Monash University, Melbourne, Australia.

Gian Luigi Lepri
Gian Luigi Lepri is a psychologist and psychotherapist coordinator of the Restorative Justice Practices Team, University of Sassari, Department of Humanities and Social Sciences – Dumas, Italy.

Ernesto Lodi
Ernesto Lodi is researcher in Social Psychology at the University of Sassari, Department of Humanities and Social Sciences – Dumas, Italy.

Patrizia Patrizi
Patrizia Patrizi is full professor of Social Psychology and Psychology and Law at the University of Sassari, Department of Humanities and Social Sciences – Dumas, Italy, member of the board of the European Forum for Restorative Justice.
Article

How framing past political violence affects reconciliation in the Basque Country

The role of responsibility attributions and in-group victimhood

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Political violence, apologies, in-group victimhood, responsibility attributions, Basque Country
Authors Magdalena Bobowik, Darío Páez, Nekane Basabe e.a.
AbstractAuthor's information

    The present study examines the impact of reminders of political violence with and without an apology on the desire for intergroup revenge in the context of political violence in the Basque Country. We expected attributions of responsibility and perceived in-group victimhood to explain these effects. A total of 257 Basque adults were assigned to three conditions: no reminder, reminders of political violence without an apology and reminders of political violence with an apology. Results showed that, as compared to no reminder condition, reminders of political violence without an apology led to assigning more responsibility to police forces and the Spanish state and less responsibility to Euskadi Ta Askatasuna (ETA) and Basque nationalism, as well as increased perceptions of in-group victimhood and the desire for intergroup revenge. Reminders of political violence accompanied by an apology activated less assignment of responsibility to police forces and the Spanish state, but more responsibility attributions to ETA and Basque nationalism, as well as activated perceptions of in-group victimhood. As expected, there was a sequential indirect effect of reminders without an apology (but not with an apology) on revenge through responsibility attributions and then perceptions of in-group victimhood. We discuss implications of these findings for intergroup relations in post-conflict contexts.


Magdalena Bobowik
Magdalena Bobowik is Post-doctoral Research Fellow at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain.

Darío Páez
Darío Páez is Full Professor at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain and at the Facultad de Educación y Ciencias Sociales, Universidad Andres Bello, Santiago de Chile, Chile.

Nekane Basabe
Nekane Basabe is Full Professor at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain.

Patrycja Slawuta
Patrycja Slawuta is a PhD Candidate at the New School for Social Research, New York, USA.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
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