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    This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners.


Elaine Mak Ph.D.
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law. Contact: mak@law.eur.nl.

    The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship. The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law.


Matyas Bodig
Dr Matyas Bodig is Senior lecturer at the University of Aberdeen School of Law, Aberdeen, UK.
Article

Access_open Legal Advice in Police Custody: From Europe to a Local Police Station

Journal Erasmus Law Review, Issue 4 2014
Keywords legal advice, police interrogation, European Union, England and Wales, France
Authors Anna Ogorodova and Taru Spronken
AbstractAuthor's information

    In October 2013, the European Union adopted a Directive, which guarantees, inter alia, the right of access to a lawyer to suspects of criminal offences from the outset of police custody and during police interrogation. However, adoption of the relevant legislation is not sufficient to ensure that this right becomes effective in practice. A range of practical measures will have to be taken by the Member States’ authorities and the legal profession to effectuate the implementation of the right to custodial legal advice. This article aims to identify the practical factors that may influence the implementation of the Directive, based on the findings of a recent normative and empirical study conducted by the authors. The research was carried out in four European jurisdictions (England and Wales, France, the Netherlands and Scotland), and it consisted of analysis of regulations, observations of daily practice in police stations, accompanying lawyers who provided custodial legal advice, and interviews with criminal justice practitioners. The article provides a range of recommendations on the practical measures to be undertaken by the EU Member States and national Bar associations aiming at improving the protection of suspects’ rights in police custody in practice.


Anna Ogorodova
Anna Ogorodova, LLM is PhD researcher at the University of Maastricht.

Taru Spronken
Dr Taru Spronken is Professor of Criminal Law and Criminal Procedure at Maastricht University and Advocate General at the Supreme Court in the Netherlands.
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open Legal Assistance and Police Interrogation

(Problematic Aspects of) Dutch Criminal Procedure in Relation to European Union and the Council of Europe

Journal Erasmus Law Review, Issue 4 2014
Keywords Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive
Authors Paul Mevis and Joost Verbaan
AbstractAuthor's information

    This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR.


Paul Mevis
Paul Mevis is Professor of Criminal Law and Criminal Procedure at the Faculty of Law of the Erasmus. He has been a visiting professor at the universities of Münster, Mmabato (South Africa) and in Moldavia, the Ukrain and in Frankfurt an der Oder. Besides his academic activities, Paul Mevis is Honorary Judge at the Criminal Court of Rotterdam and Honorary Judge at the Court of Appeal in Amsterdam, since 1994 and 1998 respectively. He has been parttime Judge at the Court of Arnhem (1990-1994) and is member of the Commission of Supervision of prisons (2006-2008). Paul Mevis is also member of the board of editors of several journals in the field of criminal law and human rights law and commentator for the journal ‘Nederlandse Jurisprudentie’ on criminal cases. He was chairman of the ‘Commissie Strafvordelijke gegevensvergaring in de informatiemaatschappij’ (2000-2001), of which the report has lead to the Bill of the same name. He is a member of the School of Human Rights Research and the Research School on Safety and Security in Society.

Joost Verbaan
Mr. J.H.J. (Joost) Verbaan is an assistant-professor at the Erasmus School of Law of the Erasmus Universiteit Rotterdam. He teaches Criminal Law and Criminal Procedure law. Mr. Verbaan is the Managing Director of the Erasmus Center for Police Studies (ECPS). The ECPS organises courses on criminal and criminal procedure law for law enforcement agencies as well as the prosecution. Mr. Verbaan has been involved in many researches in the practical field of investigation. He has taken part in the research for the Governmental Institute of Scientific Research and Documentation on the effects of the presence of an attorney during the first police interrogation.For the same institute together with professor Mevis he researched the Modalities of Serving in comparative law perspective.He served the secretary of the Committee to draft a new Dutch Antillean Criminal Code and served the secretary of the Committee to draft a new Criminal Code for Aruba, Sint Maarten and Curacao. He served the secretary of the Committee to Draft a common Criminal Procedure Code in the Caribbean regions of Aruba, Curacao , Sint Maarten and the BES-territories. In the republic of Surinam Mr. Verbaan has worked in the legal advisory board of the Committee founded in order to codify a new Criminal Code for the republic of Surinam.

Willem-Jan Verhoeven Ph.D.
Erasmus School of Law, Department of Criminology, Erasmus University Rotterdam.

    The Rome I Regulation on the law applicable to contractual obligations contains several provisions aimed explicitly at the protection of ‘weaker’ contracting parties, such as consumers and employees. However, in addition to this, the interests of weaker parties are sometimes also safeguarded through the application of ‘overriding mandatory provisions’, which are superimposed on the law applicable to the contract to protect a fundamental interest of a Member State. This article is an attempt to clarify the extent to which the concept of overriding mandatory provisions may serve as a vehicle for weaker party protection. To do this, it examines the definition and limitations of the concept and its relation to conflict of laws rules based on the protective principle. Finally, the article seeks to establish whether the doctrine of overriding mandatory provisions remains relevant in the case of harmonisation of substantive law at the EU level, for which it will differentiate between full and minimum harmonisation.


Laura Maria van Bochove Ph.D.
Assistant professor in the Department of Private International and Comparative Law at the Erasmus School of Law. The author would like to thank the reviewers for their comments.
Article

Access_open Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, conflict of laws, foreign judgments, European Union, United States
Authors Christopher Whytock M.S., Ph.D., J.D.
AbstractAuthor's information

    In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics.


Christopher Whytock M.S., Ph.D., J.D.
Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine School of Law.
Article

Access_open The Role of Private International Law in Corporate Social Responsibility

Journal Erasmus Law Review, Issue 3 2014
Keywords CSR, conflicts of law, Kiobel, Shell
Authors Geert Van Calster Ph.D.
AbstractAuthor's information

    This contribution firstly reviews developments in the EU and in the United States on corporate social responsibility and conflict of laws. It concludes with reference to some related themes, in particular on the piercing of the corporate veil and with some remarks on compliance strategy, and compliance reality, for corporations.


Geert Van Calster Ph.D.
Geert van Calster is professor at the University of Leuven and Head of Leuven Law's department of European and international law.
Article

Access_open Global Citizens and Family Relations

Journal Erasmus Law Review, Issue 3 2014
Keywords global governance, family relations, nationality, habitual residence, party autonomy
Authors Professor Yuko Nishitani Ph.D.
AbstractAuthor's information

    As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms.


Professor Yuko Nishitani Ph.D.
Professor at Kyushu University Faculty of Law, Japan. This work was supported by the JSPS Grants-in-Aid for Scientific Research (C) (Grant Number 26380063). The author sincerely thanks Professor Carol Lawson (Nagoya University) and Ms. Nettie Dekker for their devoted editing work.
Article

Access_open Private International Law: An Appropriate Means to Regulate Transnational Employment in the European Union?

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, applicable law, overriding mandatory provisions, transnational employment relations, posting of workers
Authors Prof.dr. Aukje A.H. Ms van Hoek
AbstractAuthor's information

    The regulation of transnational employment in the European Union operates at the crossroads between private international law and internal market rules. The private international law rules are currently laid down in the Rome I Regulation. This regulation is complemented by the Posted Workers Directive, a directive based on the competences of the EU in the field of free movement of services. The current contribution first describes the rules which determine the law applicable to the employment contract under Article 8 Rome I Regulation and the way these rules are interpreted by the CJEU before critically analysing these rules and the reasoning that seems to lie behind the court’s interpretation (section 2). The law applying to the contract is, however, only of limited relevance for the protection of posted workers. This is due inter alia to the mandatory application of certain rules of the country to which the workers are posted, even if a different law governs their contract. This application of host state law is based on Article 9 Rome I Regulation in conjunction with the Posted Workers Directive. Section 3 describes the content of these rules and the – to some extent still undecided – interaction between the Rome I Regulation and the PWD. The conclusion will be that there is an uneasy match between the interests informing private international law and the interests of the internal market, which is not likely to be resolved in the near future.


Prof.dr. Aukje A.H. Ms van Hoek
Aukje van Hoek is Professor at the University of Amsterdam.
Article

Access_open The Ambivalent Shadow of the Pre-Wilsonian Rise of International Law

Journal Erasmus Law Review, Issue 2 2014
Keywords American Society of International Law, Peace-Through-Law Movement, Harvard Law Library: League of Nations, President Woodrow Wilson, Pre-Wilsonianism
Authors Dr Ignacio de la Rasilla del Moral Ph.D.
AbstractAuthor's information

    The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a 'moralistic-legalistic approach to international relations' remains little studied. A survey of the rise of international legal literature in the United States from the mid-nineteenth century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the United States. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed by the realist founders of the field of 'international relations' to the 'moralistic-legalistic approach to international relations'.


Dr Ignacio de la Rasilla del Moral Ph.D.
Ignacio de la Rasilla del Moral is Lecturer in Law at the Brunel Law School of Brunel University, London. In the Spring of 2014 he served as Visiting Research Fellow at the Lauterpacht Research Centre for International Law of the University of Cambridge as recipient of a British Academy/Leverhulme Small Research Grant.
Article

Access_open Unexpected Circumstances arising from World War I and its Aftermath: ‘Open’ versus ‘Closed’ Legal Systems

Journal Erasmus Law Review, Issue 2 2014
Keywords First World War, law of obligations, unforeseen circumstances, force majeure, frustration of contracts
Authors Janwillem Oosterhuis Ph.D.
AbstractAuthor's information

    European jurisdictions can be distinguished in ‘open’ and ‘closed’ legal systems in respect of their approach to unexpected circumstances occurring in contractual relations. In this article, it will be argued that this distinction can be related to the judiciary’s reaction in certain countries to the economic consequences of World War I. The first point to be highlighted will be the rather strict approach to unexpected circumstances in contract law that many jurisdictions had before the war – including England, France, Germany, and the Netherlands. Secondly, the judicial approach in England, France, Germany, and the Netherlands to unexpected circumstances arising from the war will be briefly analysed. It will appear that all of the aforementioned jurisdictions remained ‘closed’. Subsequently, the reaction of the judiciary in these jurisdictions to the economic circumstances in the aftermath of the war, (hyper)inflation in particular, will be analysed. Germany, which experienced hyperinflation in the immediate aftermath of the war, developed an ‘open’ system, using the doctrine of the Wegfall der Geschäftsgrundlage. In the Netherlands, this experience failed to have an impact: indeed, in judicial practice the Netherlands appears to have a ‘closed’ legal system nevertheless, save for an ‘exceptional’ remedy in the new Dutch Civil Code, Article 6:258 of the Burgerlijk Wetboek (1992). In conclusion, the hypothesis is put forward that generally only in jurisdictions that have experienced exceptional economic upheaval, such as the hyperinflation in the wake of World War I, ‘exceptional’ remedies addressing unexpected circumstances can have a lasting effect on the legal system.


Janwillem Oosterhuis Ph.D.
Janwillem Oosterhuis is Assistant Professor in Methods and Foundations of Law at the Maastricht University Faculty of Law.
Article

Access_open The Economics and Empirics of Tax Competition: A Survey and Lessons for the EU

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax coordination, European Union, fiscal federalism
Authors Thushyanthan Baskaran Ph.D. and Mariana Lopes da Fonseca
AbstractAuthor's information

    We survey the theoretical and empirical literature on local and international tax competition in Economics. On the basis of this survey, we discuss whether EU countries should harmonise tax policies to prevent a race to the bottom. Much of the evidence suggests that tax competition does not lead to significant reductions in tax revenues. Therefore, we conclude that tax coordination is in all likelihood unnecessary to prevent inefficiently low levels of taxation in the EU. But since the evidence against the adverse effects of tax competition is not unambiguous, we also discuss whether intergovernmental transfers might be a less invasive means than outright tax harmonisation to prevent a race to the bottom.


Thushyanthan Baskaran Ph.D.
University of Goettingen, Germany.

Mariana Lopes da Fonseca
University of Goettingen, Germany.
Article

Access_open Tax Competition within the European Union – Is the CCCTB Directive a Solution?

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax planning, European Union, Common Consolidated Corporate Tax Base, factor manipulation
Authors Maarten de Wilde LL.M
AbstractAuthor's information

    The author addresses the phenomenon of taxable profit-shifting operations undertaken by multinationals in response to countries competing for corporate tax bases within the European Union. The central question is whether this might be a relic of the past when the European Commission’s proposal for a Council Directive on a Common Consolidated Corporate Tax Base sees the light of day. Or would the EU-wide corporate tax system provide incentives for multinationals to pursue artificial tax base-shifting practices within the EU, potentially invigorating the risk of undue governmental tax competition responses? The author’s tentative answer on the potential for artificial base shifting and undue tax competition is in the affirmative. Today, the issue of harmful tax competition within the EU seems to have been pushed back as a result of the soft law approaches that were initiated in the late 1990s and early 2000s. But things might change if the CCCTB proposal as currently drafted enters into force. There may be a risk that substantial parts of the EU tax base would instantly become mobile as of that day. As the EU Member States at that time seem to have only a single tool available to respond to this – the tax rate – that may perhaps initiate an undesirable race for the EU tax base, at least theoretically.


Maarten de Wilde LL.M
LL.M, Researcher/lecturer, Erasmus University Rotterdam (<dewilde@law.eur.nl>), lecturer, University of Amsterdam, tax lawyer, Loyens & Loeff NV, Rotterdam, the Netherlands. This article was written as part of the Erasmus School of Law research programme on ‘Fiscal Autonomy and Its Boundaries’. The author wishes to thank the anonymous reviewers for their constructive comments on an earlier draft of this article.
Article

Access_open Company Tax Integration in the European Union during Economic Crisis – Why and How?

Journal Erasmus Law Review, Issue 1 2014
Keywords company tax harmonisation, EU law, Internal Market, taxation policies
Authors Anna Sting LL.M
AbstractAuthor's information

    Company tax integration in the EU is yet to be realised. This article first outlines the main benefits of company tax integration for the Economic and Monetary Union, and also discusses the main legal obstacles the EU Treaties pose for harmonisation of company tax. The main problem identified is the unanimity requirement in the legal basis of Article 115 TFEU. As this requirement is currently not feasible in the political climate of the debt crisis, this article assesses possible reasons for and ways to further fiscal integration. It considers Treaty change, enhanced cooperation, soft law approaches and also indirect harmonisation through the new system of economic governance. Eventually, a possible non-EU option is considered. However, this article recommends making use of the current EU law framework, such as soft law approaches and the system of the new economic governance to achieve a more subtle and less intrusive tax harmonisation, or instead a Treaty change that would legitimately enhance and further economic integration in the field of taxation.


Anna Sting LL.M
PhD Candidate at the Department of International and European Union Law, Erasmus University Rotterdam. The author would like to thank the organisers of the seminar on Company Tax Integration in the European Union, as well as the participants of the seminar of 11 June 2013 for their comments, as well as Prof. Fabian Amtenbrink for comments on an earlier draft of this paper.
Article

Access_open The Effect of 'Excessive’ Tax Planning and Tax Setting on Welfare: Action Needed?

Journal Erasmus Law Review, Issue 1 2014
Keywords tax planning, optimal taxation, tax competition, corporate taxation
Authors Hendrik Vrijburg Ph.D.
AbstractAuthor's information

    This article presents a literature review on the welfare effects of excessive company taxation practices. The article intends to structure the debate by sketching a conceptual framework of thought for the topic under consideration and places the existing literature within this framework. The article ends with a thought-provoking discussion between two extreme papers in the literature, one against tax planning and one in favour. The discussion is concluded by identifying the fundamental differences in assumptions underlying both approaches.


Hendrik Vrijburg Ph.D.
Assistant Professor, Erasmus School of Economics, Erasmus University Rotterdam and Tinbergen Institute, PO Box 1738, 3000 DR Rotterdam, The Netherlands, Phone: +31-10-408-1485, Fax: +31-10-408-9031, email: vrijburg@ese.eur.nl.
Article

Access_open At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-level Legal Order

Journal Erasmus Law Review, Issue 3/4 2013
Keywords national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law
Authors Urszula Jaremba Ph.D.
AbstractAuthor's information

    The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges.


Urszula Jaremba Ph.D.
Urszula Jaremba, PhD, assistant professor at the Department of European Union Law, School of Law, Erasmus University Rotterdam. I am grateful to the editors of this Special Issue: Prof. Dr. Sanne Taekema and Dr. Wibo van Rossum as well as to the two anonymous reviewers for their useful comments. I am also indebted to Dr. Tobias Nowak for giving me his consent to use the data concerning the Dutch and German judges in this article. This article is mostly based on a doctoral research project that resulted in a doctoral manuscript titled ‘Polish Civil Judges as European Union Law Judges: Knowledge, Experiences and Attitudes’, defended on the 5th of October 2012.
Article

Access_open Human Rights Courts Interpreting Sustainable Development: Balancing Individual Rights and the Collective Interest

Journal Erasmus Law Review, Issue 2 2013
Keywords Operationalizing sustainable development, human rights, individual rights/interests, collective rights/interests, human rights courts
Authors Emelie Folkesson MA
AbstractAuthor's information

    This article uses a generally accepted conceptualisation of sustainable development that can be operationalized in a judicial context. It focuses on the individual and collective dimensions of the environmental, economic and social pillars, as well as the consideration of inter-generational and intra-generational equity. Case law from the European, African and American systems is analysed to reveal if the elements of sustainable development have been incorporated in their jurisprudence. The analysis reveals that the human rights bodies have used different interpretative methods, some more progressive than others, in order to incorporate the elements of sustainable development in the scope of their mandate, even if they do not mention the concept as such. The overall conclusion is that sustainable development has been operationalized through human rights courts to a certain extent. Sometimes, however, a purely individualised approach to human rights creates a hurdle to further advance sustainable development. The conclusion creates the impression that sustainable development is not just a concept on paper, but that it in fact can be operationalized, also in other courts and quasi-courts. Moreover, it shows that the institutional structure of human rights courts has been used in other areas than pure human rights protection, which means that other areas of law might make use of it to fill the gap of a non-existing court structure.


Emelie Folkesson MA
PhD Candidate in public international law, Erasmus University Rotterdam. The author would like to thank Prof. Ellen Hey, Prof. Klaus Heine and two anonymous reviewers for their valuable insights and constructive comments on the drafts of this article. The usual disclaimer applies.

Lucas Lixinski
Lecturer, University of New South Wales (Sydney, Australia); PhD in Law, European University Institute (Florence, Italy).
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