Utrecht Journal of International and European Law最新文献_第2页

Editorial – Volume 37, Issue 1 2022 编辑-第37卷，第1期2022

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Utrecht Journal of International and European Law Pub Date : 2022-01-01 DOI: 10.5334/ujiel.593

Matilda Radoš

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Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective 海外违反国际人权法和国际人道主义法的侵权法和国家问责:英国视角

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.545

U. Grušić

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Fair Trial in Mothers of Srebrenica et al.: Guessing as a Form of Reasoning 斯雷布雷尼察母亲等人的公平审判:猜测作为一种推理形式

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.547

Zane Ratniece

{"title":"Fair Trial in Mothers of Srebrenica et al.: Guessing as a Form of Reasoning","authors":"Zane Ratniece","doi":"10.5334/ujiel.547","DOIUrl":"https://doi.org/10.5334/ujiel.547","url":null,"abstract":"On 19 July 2019, the Dutch Supreme Court (Hoge Raad) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica (‘Mothers’), a foundation established under the Dutch law, in the interests of more than 6,000 surviving relatives of the Srebrenica genocide. Mothers and ten individual plaintiffs alleged multiple failures by the Dutch State regarding the fall of the Srebrenica safe area designated by the United Nations (‘UN’) and the fate of more than 30,000 people who had fled to either a nearby compound of the Dutch battalion or other locations, including about 7,000 Bosniac males. However, the Supreme Court established the State’s responsibility only regarding a group of approximately 350 males who had been allowed inside the Dutchbat compound but were then handed over to the Bosnian Serbs. This contribution examines from the perspective of the right to fair trial how the courts determined the State’s liability for damages in relation to these males. It questions whether the parties to the proceedings had an opportunity to present their arguments on facts and evidence as to a percentage of the State’s liability for damages. It also views the Supreme Court’s determination of the liability at 10% as problematic.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46641357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Litigating the Immunities of International Organizations in Europe: The ‘Alternative-Remedy’ Approach and its ‘Humanizing’ Function 欧洲国际组织豁免之诉:“替代救济”途径及其“人性化”功能

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.551

Luca Pasquet

{"title":"Litigating the Immunities of International Organizations in Europe: The ‘Alternative-Remedy’ Approach and its ‘Humanizing’ Function","authors":"Luca Pasquet","doi":"10.5334/ujiel.551","DOIUrl":"https://doi.org/10.5334/ujiel.551","url":null,"abstract":"There is a clear normative tension between the immunities of international organizations and the human rights to a court and to a remedy. Most national jurisdictions around the world have so far failed to recognize such a normative conflict and applied immunities irrespective of their consequences on individual claimants. However, following the Waite and Kennedy jurisprudence of the European Court of Human Rights, a number of European national jurisdictions have accepted the idea that applying international organizations’ immunities may lead to breach the right to a court in case the claimants do not have access to an alternative remedy. This contribution focuses on the latter approach, which will be called ‘alternative-remedy approach’. Drawing upon Gunther Teubner conceptualization of fundamental rights, it stresses the violence of the today’s prevalent approach toward immunities, and maintains that, by refocusing the decision-making process on the situation of individual claimants, the alternative-remedy approach ‘humanizes’ a decision-making process otherwise blind to the fate of human beings in flesh and blood. The ambiguity of the European Court of Human Rights’ jurisprudence as to the relevance of the alternative-remedy standard is also discussed, together with the consequences it had on the case-law of European national courts.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41490814","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Legal Monuments for Srebrenica in the Hague 海牙斯雷布雷尼察法律纪念碑

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.542

O. Spijkers

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Attributing Conduct in the Law of State Responsibility: Lessons from Dutch Courts Applying the Control Standard in the Context of International Military Operations 国家责任法中的行为归属：荷兰法院在国际军事行动中适用控制标准的经验教训

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.546

Cedric Ryngaert

{"title":"Attributing Conduct in the Law of State Responsibility: Lessons from Dutch Courts Applying the Control Standard in the Context of International Military Operations","authors":"Cedric Ryngaert","doi":"10.5334/ujiel.546","DOIUrl":"https://doi.org/10.5334/ujiel.546","url":null,"abstract":"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.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47068622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Introduction: Special Issue ‘The Legacy of the Mothers of Srebrenica Case’ 简介：特刊“斯雷布雷尼察案件母亲的遗产”

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.552

Cedric Ryngaert, K. Istrefi

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The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result 斯雷布雷尼察母亲案中的生命权：将保护的积极义务从手段义务转变为结果义务

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.544

K. Istrefi

{"title":"The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result","authors":"K. Istrefi","doi":"10.5334/ujiel.544","DOIUrl":"https://doi.org/10.5334/ujiel.544","url":null,"abstract":"In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops’ other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’) from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45727951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Mothers of Srebrenica: Causation and Partial Liability under Dutch Tort Law 斯雷布雷尼察的母亲：荷兰侵权法下的因果关系和部分责任

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Utrecht Journal of International and European Law Pub Date : 2021-07-16 DOI: 10.5334/ujiel.543

R. Rijnhout

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Civil Society and the IIMM in the Investigation and Prosecution of the Crimes Committed Against the Rohingya 民间社会和国际移徙组织在调查和起诉对罗兴亚人犯下的罪行中的作用

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Utrecht Journal of International and European Law Pub Date : 2021-04-06 DOI: 10.5334/UJIEL.525

Konstantina Stavrou

{"title":"Civil Society and the IIMM in the Investigation and Prosecution of the Crimes Committed Against the Rohingya","authors":"Konstantina Stavrou","doi":"10.5334/UJIEL.525","DOIUrl":"https://doi.org/10.5334/UJIEL.525","url":null,"abstract":"This article assesses the role of civil society and the Independent Investigative Mechanism for Myanmar (IIMM) in individual accountability proceedings by foreign domestic courts for the crimes committed against the Rohingya in light of the obstacles faced by Myanmar courts, the International Criminal Court (ICC) and the United Nations Security Council (UNSC). Due to the inability of third States to investigate the crimes committed within Myanmar, they depend (almost) exclusively on civil society organisations’ (CSO) documentation to assert their jurisdiction. The article argues that two factors necessitated the creation of the IIMM as a legal bridge between documentation and States’ investigatory and prosecutorial duties: the concerns about the reliability of CSOs’ documentation and the impediments in its direct admissibility in criminal trials. The combined initiatives of civil society and the Mechanism constitute an essential component of States’ duty in fulfilling their obligations to investigate and prosecute the crimes against the Rohingya. Finally, the Mechanism sets a precedence where civil society could actively participate in the promotion of the interests of justice.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"36 1","pages":"95-113"},"PeriodicalIF":0.6,"publicationDate":"2021-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48039559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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