Interpreting an unsatisfactory EU Blocking Statute: Bank Melli Iran
In: Common market law review, Band 60, Heft 2, S. 517-531
ISSN: 1875-8320
In: Common market law review, Band 60, Heft 2, S. 517-531
ISSN: 1875-8320
In: European journal of international law, Band 34, Heft 1, S. 221-224
ISSN: 1464-3596
In: Netherlands international law review: NILR ; international law - conflict of laws, Band 70, Heft 1, S. 121-136
ISSN: 1741-6191
AbstractThis report provides a summary of a symposium on independent advice on public international law, organized by the Dutch Advisory Committee on Public International Law (CAVV) on the 19th of January 2023 in The Hague. The speakers highlighted the internationally unique character of the CAVV, which is a formal body, established by law, advising the Dutch Government (Cabinet and Parliament) on questions of international law. The CAVV reflects the Dutch traditional culture of broad societal involvement and of compromise. It serves various audiences, such as the Dutch Cabinet and Parliament, the International Law Commission, legal academics, legal practitioners, and the wider public. The CAVV can be said to have an influence on both national and international debates regarding international law. This is illustrated on the basis of a discussion of the CAVV's advisory reports on the protection of the atmosphere, the use of the term 'genocide' by politicians, and the provision and funding of non-lethal assistance to non-state armed groups.
In: Netherlands international law review: NILR ; international law - conflict of laws, Band 69, Heft 1, S. 1-1
ISSN: 1741-6191
The Restatement of the Law (Fourth): The Foreign Relations Law of the United States is a monumental work, which, just like the Restatement (Third), may prove influential abroad. This also applies to its restatement of the law of jurisdiction. The clarity of the relevant chapters on jurisdiction, including the reporters' notes, is admirable. Comparing the Restatement (Third) to the Restatement (Fourth), it is striking that the latter places greater emphasis on US law-based jurisdictional limitations. The relevance of the customary international law of jurisdiction has correspondingly diminished, especially in regard to jurisdiction to prescribe and adjudicate. This commentary critiques this shift towards jurisdictional 'parochialism'. It singles out (i) the drafters' characterization of the principle of jurisdictional reasonableness as a principle of US statutory interpretation (prescriptive comity) rather than a customary international law norm limiting prescriptive jurisdiction and (ii) the drafters' view that the exercise of adjudicative jurisdiction is not constrained by customary international law.
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The Restatement of the Law (Fourth): The Foreign Relations Law of the United States is a monumental work, which, just like the Restatement (Third), may prove influential abroad. This also applies to its restatement of the law of jurisdiction. The clarity of the relevant chapters on jurisdiction, including the reporters' notes, is admirable. Comparing the Restatement (Third) to the Restatement (Fourth), it is striking that the latter places greater emphasis on US law-based jurisdictional limitations. The relevance of the customary international law of jurisdiction has correspondingly diminished, especially in regard to jurisdiction to prescribe and adjudicate. This commentary critiques this shift towards jurisdictional 'parochialism'. It singles out (i) the drafters' characterization of the principle of jurisdictional reasonableness as a principle of US statutory interpretation (prescriptive comity) rather than a customary international law norm limiting prescriptive jurisdiction and (ii) the drafters' view that the exercise of adjudicative jurisdiction is not constrained by customary international law.
BASE
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 of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States (i.e., States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts' reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.
BASE
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 of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States (i.e., States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts' reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.
BASE
In: European journal of international law, Band 32, Heft 4, S. 1455-1469
ISSN: 1464-3596
Abstract
The Restatement of the Law (Fourth): The Foreign Relations Law of the United States is a monumental work, which, just like the Restatement (Third), may prove influential abroad. This also applies to its restatement of the law of jurisdiction. The clarity of the relevant chapters on jurisdiction, including the reporters' notes, is admirable. Comparing the Restatement (Third) to the Restatement (Fourth), it is striking that the latter places greater emphasis on US law-based jurisdictional limitations. The relevance of the customary international law of jurisdiction has correspondingly diminished, especially in regard to jurisdiction to prescribe and adjudicate. This commentary critiques this shift towards jurisdictional 'parochialism'. It singles out (i) the drafters' characterization of the principle of jurisdictional reasonableness as a principle of US statutory interpretation (prescriptive comity) rather than a customary international law norm limiting prescriptive jurisdiction and (ii) the drafters' view that the exercise of adjudicative jurisdiction is not constrained by customary international law.
In: Oxford scholarship online
Discussing under what conditions states can take unilateral action to promote the interests of the international community, this title puts forward an argument in favour of unilateral action in the common interest, but suggests a number of restraining techniques to limit its intrusiveness.
In: The British yearbook of international law
ISSN: 2044-9437
Abstract
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.
In: Globalization law and policy
Introduction / Ivo Giesen, Liesbeth Enneking, François Kristen, Lucas Roorda, Cedric Ryngaert, Anne-Jetske Schaap -- Whose Responsibilities? The Responsibility of the 'Business Enterprise' to Respect Human Rights / Björn Fasterling -- National Contact Points under OECD's Guidelines for Multinational Enterprises : Institutional Diversity Affecting Assessments of the Delivery of Access to Remedy / Karin Buhmann -- Unpacking Accountability in Business and Human Rights : The Multinational Enterprise, the State, and the International Community / Larry Backer -- The Effectiveness of International Arbitration to Provide Remedy for Business-Related Human Rights Abuses / Katerina Yiannibas -- Justice without Borders : Models of Cross-Border Legal Cooperation and What They can Teach us / Jennifer Zerk -- Ignorantia facti excusat? : the Viability of Due Diligence as a Model to Establish International Criminal Accountability for Corporate Actors Purchasing Natural Resources from Conflict Zones / Daniëlla Dam-de Jong -- From 'Too Big to be Governed' to 'Not Too Big to be Responsible'? / François Kristen & Jessy Emaus -- Holding Businessmen Criminally Liable for International Crimes : Lessons from the Netherlands on How to Address Remote Involvement / Marjolein Cupido, Mark Hornman & Wim Huisman -- Legally Binding Duties for Corporations under Domestic Criminal Law Not to Commit Modern Slavery / Anne-Jetske Schaap -- Limited Liability and Separate Corporate Personality in Multinational Corporate Groups : Conceptual Flaws, Accountability Gaps and the Case for Profit-Risk Liability / Paul Dowling -- The Swiss Federal Initiative on Responsible Business : From Responsibility to Liability / Nicolas Bueno -- The Mismatch between Human Rights Policies and Contract Law : Improving Contractual Mechanisms to Advance Human Rights Compliance in Supply Chains / Martijn Scheltema -- Accountability, International Business Operations and The Law : The Way Forward / Cedric Ryngaert, Liesbeth Enneking, Ivo Giesen, François Kristen, Lucas Roorda Anne-Jetske Schaap
In: Netherlands international law review: NILR ; international law - conflict of laws, Band 66, Heft 3, S. 537-553
ISSN: 1741-6191
Abstract
This article provides an analysis of the Dutch Supreme Court judgment in the Mothers of Srebrenica case, placing it in its context, and comparing it with earlier and related decisions, in particular the judgments in the cases of Nuhanović and Mustafić. The Mothers of Srebrenica is a foundation established to represent the interests of the approximately 6000 surviving relatives of the victims of the fall of Srebrenica during the conflict in the former Yugoslavia (1995). The foundation holds the Netherlands responsible for not having done enough to protect the victims of the Srebrenica genocide. This contribution addresses the attribution of the conduct of the United Nations peacekeeping contingent to the troop-contributing State (the Netherlands), followed by the wrongfulness of the peacekeepers' conduct and the State's attendant liability for damages suffered by the victims. It is argued that the Dutch State's international responsibility was only engaged because of the exceptional circumstances present in Srebrenica at the time. In the ordinary course of events, the liability of troop-contributing States is unlikely to be engaged if the Supreme Court's review standard were to be applied.
In: Netherlands international law review: NILR ; international law - conflict of laws, Band 66, Heft 2, S. 191-195
ISSN: 1741-6191
In: Netherlands international law review: NILR ; international law - conflict of laws, Band 65, Heft 1, S. 1-25
ISSN: 1741-6191