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Collection Highlights

Public International Law and Human Rights Violations by

Private Military and Security Companies 1st Edition Helena
Torroja (Eds.)

Public and Private Enforcement of Competition Law in

Europe Legal and Economic Perspectives 1st Edition Kai
Hüschelrath

Women s Rights and Religious Law Domestic and

International Perspectives 1st Edition Parmod Kumar

Towards a European public law Stirn

Public School Law Teachers and Students Rights Pearson New
International Edition Nelda Cambron-Mccabe

International Sale of Goods A Private International Law

Comparative and Prospective Analysis of Sino European
Relations 1st Edition Nicolas Nord

Sex, Gender and International Human Rights Law 1st Edition

Gilleri

International Human Rights Law Daniel Moeckli

Indigenous Peoples, Marine Space and Resources, and

International Law : The Interaction Between International
Human Rights Law and the Law of the Sea 1st Edition Enyew
Fundamental
Rights in
International
and European Law
Public and
Private Law Perspectives

Christophe Paulussen · Tamara Takács

Vesna Lazić · Ben Van Rompuy Editors
Fundamental Rights in International
and European Law
Christophe Paulussen · Tamara Takács
Vesna Lazić · Ben Van Rompuy
Editors

Fundamental Rights
in International
and European Law
Public and Private Law Perspectives

13
Editors
Christophe Paulussen Vesna Lazić
T.M.C. Asser Instituut T.M.C. Asser Instituut
The Hague The Hague
The Netherlands The Netherlands

Tamara Takács Ben Van Rompuy

T.M.C. Asser Instituut T.M.C. Asser Instituut
The Hague The Hague
The Netherlands The Netherlands

ISBN 978-94-6265-086-2 ISBN 978-94-6265-088-6 (eBook)

DOI 10.1007/978-94-6265-088-6

Library of Congress Control Number: 2015950027

Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl

Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg

© t.m.c. asser press and the authors 2016

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by
any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written
permission from the Publisher, with the exception of any material supplied specifically for the purpose
of being entered and executed on a computer system, for exclusive use by the purchaser of the work.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.

Printed on acid-free paper

Springer Science+Business Media B.V. Dordrecht is part of Springer Science+Business Media

(www.springer.com)
Foreword

On the occasion of its 50th Anniversary, the T.M.C. Asser Instituut proudly
presents this collection of scholarly articles written by its staff members and some
of its external research partners and friends. Celebrating a jubilee should also be a
forward-looking event. This book represents the Institute’s fields of expertise at a
moment of reflection on its work so far and on its plans for the next decade.
Emily Rosenberg characterized the era of 1870–1945 as “A World
Connecting”, which produced great achievements but also horrifying crimes
against humanity. Tobias Asser was one of the great Dutch scholars of private
and public international law, who—with remarkable foresight—grasped the need
to embed relations of power in an evolving legal order, with processes of nego-
tiation, arbitration and adjudication. Tobias Asser, himself a child of the Jewish
emancipation, was always aware of the importance that the law should do justice
to every citizen across imagined or real borders. The Hague Conference on Private
International Law, the establishment of international arbitration and jurisdic-
tion, and the Hague Peace Conference are interrelated results of Asser’s mission.
Together they embody a vision of international relations based upon the rule of
law. The horrors of war and genocide in the twentieth century appear to have shat-
tered Asser’s achievements, but in the end they survived the horrors of that time
and developed into the present mosaic of international legal institutions based in
The Hague.
The Asser Institute’s fields of research reflect this mosaic. When the law
schools of the Dutch universities decided to jointly create an inter-university insti-
tute for public and private international law, as well as European law, in 1965,
they wanted to build upon Asser’s heritage and recognized that there was no name
which was better suited than that of Tobias Asser to express their views on the task
of the Institute. Fifty years later, this appears to be even more appropriate. In the
second decade of the twenty-first century, the world is highly connected, in many
senses. More than ever we need to anchor the relations of these networks of con-
nections in the reliability of treaties, courts and non-partisan scholarship.

v
vi Foreword

As an inter-university institute, based in The Hague, the seat of the most impor-
tant international legal institutions as well as Eurojust and Europol, the Asser
Institute aims to continue being the connector of academic and high-level practi-
cal legal work, in treaty-making, legal diplomacy, trade and competition. Not only
the Netherlands, but also the European Union—as an actor in international rela-
tions and a co-guarantor of the international rule of law—demands attention in our
research.
This book is only a sample of the research being carried out by our staff and
partners, but numerous other volumes and journals jointly published by T.M.C.
Asser Press and our renowned international publishing partner Springer reflect
our experience in international and European law. We—the staff and board of the
Asser Institute—are fully committed to accept our predecessors’ fifty years of
commitment as a task for the years ahead.

Ernst Hirsch Ballin

President of the T.M.C. Asser Instituut
and Professor of Human Rights Law
at the University of Amsterdam
Contents

1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Christophe Paulussen, Tamara Takács, Vesna Lazić
and Ben Van Rompuy

Part I Public International Law

2 Towards an EU Position on Armed Drones and Targeted Killing?. . . 9

Christophe Paulussen and Jessica Dorsey

3 The Protection of Nationals Abroad: A Return to Old Practice?. . . . 45

Onur Güven and Olivier Ribbelink

4 The ‘Unwilling or Unable’ Test and the Law of Self-defence. . . . . . . 73

Kinga Tibori-Szabó

Part II European Union Law

5 Protection of Fundamental Rights in Third Countries Through

EU External Trade Policy: The Cases of Conflict Minerals
and Timber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Wybe Th. Douma and Steffen van der Velde

6 Fundamental Rights and Rule of Law Promotion in EU

Enlargement Policy in the Western Balkans. . . . . . . . . . . . . . . . . . . . . 123
Tamara Takács and Davor Jancic

7 The Court of Justice and Effective Judicial Protection:

What Has the Charter Changed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Sacha Prechal

vii
viii Contents

Part III Private International Law

8 Family Private International Law Issues Before the European

Court of Human Rights: Lessons to Be Learned from
Povse v. Austria in Revising the Brussels IIa Regulation. . . . . . . . . . . 161
Vesna Lazić

9 Some Aspects of the Application and Ascertainment of Foreign

Law in the Light of Article 6 of the ECHR. . . . . . . . . . . . . . . . . . . . . . 185
Steven Stuij

10 International Commercial Surrogacy Arrangements:

The Interests of the Child as a Concern of Both Human
Rights and Private International Law. . . . . . . . . . . . . . . . . . . . . . . . . . 211
Richard Blauwhoff and Lisette Frohn

Part IV International and European Sports Law

11 Protecting Athletes’ Right to a Fair Trial Through EU

Competition Law: The Pechstein Case . . . . . . . . . . . . . . . . . . . . . . . . . 245
Antoine Duval and Ben Van Rompuy

12 The Enforcement of CAS Arbitral Awards by National

Courts and the Effective Protection of EU Law. . . . . . . . . . . . . . . . . . 279
Marco van der Harst

13 Rights and Wrongs of and About Nationality

in Sports Competition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
James A.R. Nafziger
Editors and Contributors

About the Editors

Christophe Paulussen is a Senior Researcher international humanitarian law/

international criminal law and Coordinator of the public international law cluster at
the T.M.C. Asser Instituut in The Hague, Coordinator of the Inter-Faculty Research
Platform ‘International Humanitarian and Criminal Law Platform’ and Research
Fellow at the International Centre for Counter-Terrorism—The Hague. Christophe
is also a member of the editorial boards of the journal Security and Human Rights
and the Yearbook of International Humanitarian Law, member of the Executive
Board of the Royal Netherlands Society of International Law and a jury member
of the J.P.A. François Prize (Royal Netherlands Society of International Law). In
addition to this, Christophe has been involved as project leader in the development
and implementation of numerous lectures, conferences, databases, including the In-
ternational Crimes Database (www.internationalcrimesdatabase.org), trainings, and
needs assessment and capacity building missions in public international law-related
projects.
Tamara Takács is a Senior Researcher in EU law and Coordinator of the EU law
cluster at the T.M.C. Asser Instituut in The Hague, and Academic Programme Co-
ordinator of CLEER (Centre for the Law of EU External Relations). Previously she
was Assistant Professor in EU law at the Europa Instituut Faculty of Law, Utrecht
University (2009–2011), where she taught courses on European institutional law,
law of the EU (including Internal Market, Competition) and international economic
law (WTO law). Tamara was Adjunct Associate Professor at the American Universi-
ty Washington College of Law (Spring 2011) teaching a course on European Union
law. A Hungarian national, she obtained her law degree at the University of Pécs,
received a research master degree in European law (D.E.A.) from the Université
Nancy 2, and wrote her Ph.D. at Utrecht University and the T.M.C. Asser Instituut.

ix
x Editors and Contributors

Vesna Lazić is a Senior Researcher in private international law and international

commercial arbitration and Coordinator of the Private International Law cluster at
the T.M.C. Asser Instituut in The Hague and Associate Professor at Utrecht Univer-
sity. In 2013 she was appointed Professor of EU Civil Procedure at the University
of Rijeka. Dispute settlement, especially international litigation and commercial
arbitration, private international law, insolvency and commercial law are the fields
of her particular interest and expertise.
Ben Van Rompuy is a Senior Researcher in International and European Sports
Law at the T.M.C. Asser Instituut in The Hague and coordinator of the ASSER
International Sports Law Centre. In addition, Ben is Guest Professor of Competi-
tion Policy at the Vrije Universiteit Brussel (VUB). His research focuses primarily
on the application of EU (competition) law in the sports and media sectors. He
obtained his Ph.D. in law from the VUB with a thesis on the role of non-efficien-
cy considerations under Article 101 TFEU (published by Wolters Kluwer Law &
Business in 2012). Ben has been a visiting scholar at Georgetown University Law
Center and New York University. He is a member of the editorial board of The In-
ternational Sports Law Journal, the ASSER International Sports Law Series and the
Information Technology and Law Series.

Contributors

Richard Blauwhoff is a Senior Legal Counsel at the Internationaal Juridisch In-

stituut in The Hague, a research institute and consultancy specialised in matters of
Dutch and foreign private international law and foreign private and procedural law.
He studied international and European public law at Utrecht University. His law
studies generally centered on human rights and European law. Richard also studied
history of international relations and Portuguese language and literature at Utrecht
University. At the same university he defended his Ph.D. in 2009 in the field of
comparative family law, for which he was awarded the Dutch German Jurists Prize
and the Erasmus Study Prize. Part of his comparative law research was spent in
Coimbra, Lyon and Marburg. Richard’s working experience at the Internationaal Ju-
ridisch Instituut is focused on private international law, family law and contract law.
Richard was one of the authors of the Report on Lay Justice (2007) for the Dutch
Council for the Judiciary and one of the authors of the study conducted on the re-
quest of the European Parliament, A European framework for private international
law: current gaps and future perspectives, Study IP/C/JURI/IC/2012-009. He also
is the author of various publications on human rights, international family law and
private international law.
Jessica Dorsey is a Researcher at the T.M.C. Asser Instituut in the areas of interna-
tional humanitarian law, international human rights law and international criminal
law and a Research Fellow at the International Centre for Counter-Terrorism—The
Editors and Contributors xi

Hague. Originally from the United States, she received her J.D. in 2008 while con-
centrating on international and comparative law (with distinction), before complet-
ing her LL.M. (cum laude) in public international law in 2010. After her studies, she
worked on various legal research projects as well as on a human rights initiative for
the Municipality of Utrecht. In 2011, she was a junior lecturer at the Utrecht Uni-
versity School of Law, where she taught general international law and comparative
human rights. Jessica also teaches international humanitarian law and international
criminal law during a summer field studies program with Duke University in the
US. She is also the Editorial Assistant for the Yearbook of International Humani-
tarian Law, an Assistant Editor for the international law weblog Opinio Juris and
she collaborated on a project for the United Nations Special Rapporteur on Human
Rights and Counter Terrorism investigating the civilian impact of the use of drones.
She has also made a name for herself in the use of social media in legal research.
Wybe Th. Douma is Senior Research Fellow European law and international trade
law at the T.M.C. Asser Instituut in The Hague. He has lectured on European law,
European and international environmental law and issues of sustainable develop-
ment, Dutch administrative and economic law and international trade law at the
University of Groningen and the T.M.C. Asser Instituut, at numerous universities
in the EU and its neighbouring countries, South America and Asia. He was team
leader and Senior Legal Expert in a wide range of legal projects, seconded to the
legal departments of several Dutch ministries for extensive periods and worked on
numerous other projects dealing mainly with the relationship between national and
European law. He publishes frequently on a variety of Dutch, European and interna-
tional law issues. He is an editor for two Dutch law journals, a board member of the
Centre for the EU Law on External Relations (CLEER), a member of the editorial
board of the Proceedings of the Estonian Academy of Security Sciences and on the
board of referees of the Lisbon Law Review.
Antoine Duval is a Senior Researcher International and European Sports law at
the T.M.C. Asser Instituut in The Hague. He holds a Ph.D. in law from the Euro-
pean University Institute in Florence and studied political science and law in Paris,
Toronto and Cologne. His main research interest lies in the study of the emergence
of transnational law in the field of sport. He has recently published on the notion of
lex sportiva, on the Court of Arbitration for Sport and the application of EU law in
a sporting context.
Lisette Frohn is Senior Legal Counsel at the Internationaal Juridisch Instituut in
The Hague, a research institute and consultancy specialized in matters of Dutch
and foreign private international law and foreign private and procedural law. She
studied law at the Vrije Universiteit in Amsterdam. Her working experience (con-
sultancy and lectures) is focused on family law, including the law of succession,
procedural law and contracts. She is Secretary of the Dutch Standing Commission
on Private International Law. In that capacity she was involved in the codification
of Dutch private international law in Book 10 Civil Code. She is a member of the
Advisory Commission on matters of civil status and nationality. She is a member
xii Editors and Contributors

of the ­editorial board of NIPR (Nederlands Internationaal Privaatrecht) and of the

editorial board of FJR (Tijdschift voor Familie- en Jeugdrecht). Lisette is the author
of many publications on private international law, mostly on family law and the law
of succession, but her publications also include topics such as general principles
of private international law and commercial law. She was one of the authors of the
Report on Lay Justice (2007) for the Dutch Council for the Judiciary and one of
the authors of the Study conducted on request of the European Parliament, A Euro-
pean framework for private international law: current gaps and future perspectives,
Study IP/C/JURI/IC/2012-009.
Onur Güven is a Researcher public international law at the T.M.C. Asser Instituut
in The Hague. His research fields include international arms control and disarma-
ment law, collective security law, international humanitarian law, the law of treaties,
and general public international law. He studied law at Utrecht University and holds
an LL.M. in Public International Law. He worked as a legal counsel in contract and
labour dispute settlements, before joining the Asser Institute in 2012. Furthermore,
Onur works on the design, writing and implementation of research projects. His
main research interest concerns the destructive creativity of crisis and conflict in the
development of international law.
Davor Jancic is a Senior Researcher in EU law at the T.M.C. Asser Instituut in The
Hague. He was previously a British Academy Newton Fellow at the Law Depart-
ment of the London School of Economics and Political Science (LSE), UK, work-
ing on several postdoc research projects in the fields of EU institutional law, EMU
reform, EU foreign affairs and EU transatlantic relations. Davor holds a Ph.D. in Eu-
ropean constitutional law from Utrecht University. His doctorate analysed the role
of national parliaments in EU decision-making processes. He obtained his LL.M. in
International and European Law cum laude from the University of Amsterdam and
his LL.B. summa cum laude from the University of Novi Sad. Davor has also been
a Visiting Scholar at the Centre for European Studies of Sciences Po Paris (2009),
LSE Law Department (2009), Jean Monnet Centre of Excellence of the University
of Lisbon (2010) and the Max Planck Institute for Comparative Public Law and
International Law in Heidelberg (2011–2012). In 2011, he won the Europe Award
for Junior Academics from the Montesquieu Institute, The Hague.
James A.R. Nafziger is Thomas B. Stoel Professor of Law and Director of In-
ternational Law Programs at the Willamette University College of Law. He is the
former President and Chair of the executive committee of the American branch of
the International Law Association (ILA) and former Co-Director of Studies at the
Hague Academy of International Law. He currently serves on the ILA’s Executive
Council and is Secretary of the American Society of International Law and Honor-
ary President of the International Association of Sports Law. James has taught and
written extensively in diverse fields of international and comparative law and has
authored or edited a dozen books, including International Sports Law, Handbook
on International Sports Law and Transnational Law of Sports.
Editors and Contributors xiii

Sacha Prechal has been a Judge at the Court of Justice of the European Union
since 2010. She studied law at the University of Groningen (1977–83) and she
holds a Ph.D. in law from the University of Amsterdam (1995). She started her
professional career as Lecturer in the law faculty of the University of Maastricht
(1983–87). Between 1987 and 1991 she was Legal Secretary at the Court of Justice
of the European Communities and then again Lecturer at the Europa Institute of
the law faculty of the University of Amsterdam (1991–95). In 1995 Sacha was ap-
pointed Professor of European law in the law faculty of the University of Tilburg
and in 2003 Professor of European law in the law faculty of the University of Utre-
cht. Since 1 January 2012 she holds this position as Honorary Professor. She is a
member of the editorial or advisory board of several national and international legal
journals and a member of the Royal Netherlands Academy of Arts and Sciences.
Sacha is the author of numerous publications on EU law, in particular on judicial
protection in the EU, on various aspects of the relationship between EU law and
national law, on general principles/fundamental rights, on EU anti-discrimination
law and on problems related to EU directives.
Olivier Ribbelink is a Senior Researcher at the T.M.C. Asser Instituut in The
Hague, where he served as Head of the Research Department from 2000 until 2010,
and Associate Professor at Utrecht University’s School of Law (2010–present). He
studied international relations and international law at the University of Amsterdam,
where he obtained his Ph.D. with a thesis on succession of international organisa-
tions. From 1987 until 1997, he was a lecturer in international law at the University
of Amsterdam. Inter alia, he was the project-coordinator of the 2007 Handbook
International Law, and Head of the Research Team of the AGIS project on the Eu-
ropean Arrest Warrant for the European Commission. He is a Board Member of the
Netherlands School of Human Rights Research, and of the International Justice
Foundation. From 1992–2008 Olivier served as Secretary-General of the Alumni
Association of the Hague Academy of International Law. He is a member of sev-
eral editorial and advisory boards of international publications. His areas of interest
include inter alia general international law, international institutional law, state suc-
cession, and the law of outer space.
Steven Stuij is Researcher in private international law at the T.M.C. Asser Institu-
ut. He completed his law studies at the Erasmus University in Rotterdam. After
working a short period as a research assistant for the latter institution, he joined the
T.M.C. Asser Instituut in October 2010. Steven is currently writing a Ph.D. thesis
on the procedural status of foreign law in the context of European private interna-
tional law. In the course of his Ph.D. research, Steven has been a Van Calker visiting
scholar at the Swiss Institute of Comparative Law in Lausanne, Switzerland, during
February and March 2012. He is also involved with consultancy work in private in-
ternational law issues and with training and research projects. Finally, Steven docu-
ments case law and legal literature for the Dutch private international law review
Nederlands Internationaal Privaatrecht.
xiv Editors and Contributors

Kinga Tibori-Szabó currently works as a Legal Adviser for the Legal Representa-
tive of Victims at the Special Tribunal for Lebanon and as an independent legal
consultant in public international law and international criminal law. Kinga is also a
qualified attorney in the State of New York, USA. Her monograph, Anticipatory Ac-
tion in Self-Defence (T.M.C. Asser Press, 2011) won the 2012 Francis Lieber Prize
of the American Society of International Law.
Marco van der Harst is a Researcher and Ph.D. Candidate in international and
European sports law at the T.M.C. Asser Instituut in The Hague. His research fo-
cuses primarily on the private law enforcement of EU (competition) law (i.e. the
effective protection of EU (competition) law as an EU public policy exception) with
regard to the unchartered territory of national courts’ enforcement proceedings of
foreign arbitral awards rendered by the Court of Arbitration for Sport. Marco is a
member of the editorial board of the ASSER International Sports Law Series.
Steffen van der Velde studied international and European law at the University of
Groningen. Before graduating in 2009, he spent a summer at the University of Oslo,
Norway, where he took courses in human rights law and European competition law.
In February 2011, Steffen joined the T.M.C. Asser Instituut as Researcher EU law,
in which capacity he is writing his Ph.D. dealing with the integration of the concept
of sustainable development into future EU FDI policy, with a focus on investment in
the mining sector of developing countries. Steffen combines the academic activities
with consultancy activities, working on numerous ‘EU environmental law’ projects
for the Dutch ministries and EU institutions.
Chapter 1
Introduction

Christophe Paulussen, Tamara Takács, Vesna Lazić and Ben Van Rompuy

Abstract This book, published on the occasion of the 50th anniversary of the
T.M.C. Asser Instituut in The Hague, is a compilation of contributions addressing
various public and private law perspectives on fundamental rights in international
and European law. In this introductory chapter, the editors present the different
contributions and their authors. The editors argue that by covering a variety of sub-
stantive topics that will not be readily found in other books, and thus by looking
over the fence, into areas that one may not be so comfortable with, inspiration and
potential solutions for fundamental rights problems may be found.

Keywords T.M.C. Asser Instituut · 50th anniversary · Fundamental rights · Public

international law · EU law · Private international law · International and European
sports law

This book, published on the occasion of the 50th anniversary of the T.M.C. Asser
Instituut in The Hague, is a compilation of contributions addressing various public
and private law perspectives on fundamental rights in international and European
law. The book aims to shed more light on topical issues that can be related to a
theme which runs through the four areas of research of the T.M.C. Asser Instituut
(Public International Law, EU Law, Private International Law and International
and European Sports Law); namely fundamental rights. The chapters have been
written by staff members from the T.M.C. Asser Instituut itself, as well as by
distinguished external invited authors, who have a connection with the institute,

C. Paulussen (*) · T. Takács · V. Lazić · B. Van Rompuy

T.M.C. Asser Instituut, The Hague, The Netherlands
e-mail: [email protected]

© t.m.c. asser press and the authors 2016 1

C. Paulussen et al. (eds.), Fundamental Rights in International
and European Law, DOI 10.1007/978-94-6265-088-6_1
2 C. Paulussen et al.

namely Dr. Kinga Tibori-Szabó, Legal Adviser at the Special Tribunal for Lebanon
and winner of the 2012 Francis Lieber Prize, Judge Prof. Dr. Sacha Prechal of
the Court of Justice of the European Union (CJEU), Dr. Richard Blauwhoff and
Lisette Frohn LL.M. of the ‘Internationaal Juridisch Instituut’ in The Hague and
finally Prof. James A.R. Nafziger, Thomas B. Stoel Professor of Law and Director
of International Programs, Willamette University College of Law and Honorary
President of the International Association of Sports Law.
The book consists of four parts, representing the four main areas of research:
Public International Law (Part I), EU Law (Part II), Private International Law (Part
III) and International and European Sports Law (Part IV).
In the first part of this book, the authors of Chaps. 2–4 delve into various
aspects of fundamental rights in the public international law context.
Chapter 2, entitled ‘Towards an EU Position on Armed Drones and Targeted
Killing?’ and written by Dr. Christophe Paulussen and Jessica Dorsey LL.M. J.D.,
gauges the extent to which European Union (EU) governments share the United
States (US)’ position on armed drones and targeted killing. In doing so, it aims to
assist in distilling an EU Common Position on the use of armed drones and a legal
framework for counterterrorism-related uses of force. The authors argue that an
EU Common Position should be first and foremost based in the rule of law, which
entails full respect for international law, including international humanitarian law
and international human rights law. In addition, an EU Common Position should
stress the importance of transparency, oversight and accountability: unlawful
drone strikes should be followed by proper and independent investigations, with
victims of such strikes having access to effective remedies.
Chapter 3, entitled ‘The Protection of Nationals Abroad: A Return to Old
Practice?’, is written by Onur Güven LL.M. and Dr. Olivier Ribbelink. The use of
armed force by the Russian Federation in actions claimed as protection of Russian
nationals outside Russian Federation territory, most recently in 2014 in Crimea
and East Ukraine, and earlier in 2008 in South Ossetia and Abkhazia, once again
brought the doctrinal discussion around the protection of nationals abroad (PNA)
to the foreground. This chapter discusses different elements that play an impor-
tant role in the debate, such as the relation of PNA with diplomatic protection,
whether the right to exercise diplomatic protection includes the right to use force,
and whether the protection of nationals in danger can be justified as self-defence.
The right to self-defence is addressed in further detail in Chap. 4, the last
chapter of this first part: ‘The “Unwilling or Unable” Test and the Law of Self-
Defence’, written by Dr. Kinga Tibori-Szabó. Recent events related to the rise
of ISIS have catapulted the ‘unwilling or unable’ test to the forefront of the legal
debate concerning the fight against terrorism. The still controversial test offers a
justification for unilateral use of force in self-defence on behalf of a victim state
on the territory of a host state that is unwilling or unable to prevent a non-state
actor located on its soil from carrying out attacks against the victim state. This
chapter analyzes the history, current status and content of the ‘unwilling or unable’
test with a view to highlighting the main concerns that come with it. This chap-
ter argues that if the ‘unwilling or unable’ test is here to stay, governments and
1 Introduction 3

authors alike must make considerable effort to clarify its content, delineate its lim-
its and set out its requirements in the context of the law of self-defence.
In the second part of this book, the authors of Chaps. 5–7 address fundamental
rights in the context of European Union law.
Chapter 5 is written by Dr. Wybe Douma and Steffen van der Velde LL.M.
and is entitled ‘Protection of Fundamental Rights in Third Countries Through EU
External Trade Policy: The Cases of Conflict Minerals and Timber’. The chap-
ter assesses the framework within which the EU, since the entry into force of the
Treaty of Lisbon, is assigned to promote a broad range of principles and objectives
in its external relations. The chapter’s focus lies with the advancement of human
rights and environment protection in commercial relations (trade). Through two
case studies, they examine the way the EU integrates human rights and environ-
ment protection objectives in its external actions and explore the coherence and
sustainability of such actions. Through the discussion concerning the legal frame-
work governing the imports of timber and the proposed framework of conflict
minerals, the authors highlight the weaknesses that rest in the regimes’ soft word-
ing and requirements, and the voluntary nature of the instruments regarding miner-
als. Finally, they would wish to see the EU assert its commercial leverage for the
promotion of non-commercial values and objectives set by the Treaty of Lisbon,
such as human rights, in its trade relations.
Chapter 6, entitled ‘Fundamental Rights and Rule of Law Promotion in EU
Enlargement Policy in the Western Balkans’, is written by Dr. Tamara Takács
and Dr. Davor Jancic. This chapter analyses the promotion of the rule of law and
fundamental rights within the accession negotiations of countries of the Western
Balkans. While the EU’s transformative power has been impactful in the previous
accession rounds in Eastern Europe, the conditionality policy that the EU employs
vis-à-vis the aspiring countries has not been without criticism. Restructuring of the
negotiation chapters has brought forward the centrality of the rule of law and cor-
responding policy areas and has led to the modernising of legal systems by these
countries, so as to align them with international standards and EU benchmarks.
This has been the case, the authors note, with respect to access to justice, which is
not only a fundamental right in and of itself but also has significant organisational
and policy implications for the administration of justice. In order to expose the
advantages and disadvantages of the EU’s conditionality policy, the example of the
interplay between the EU and Serbia are presented in the latter’s accession nego-
tiation process by assessing the EU’s Stabilisation and Association Process and the
key legal reforms implemented or planned by Serbia in the sphere of the rule of
law and fundamental rights protection.
Chapter 7, the last chapter of this second part, is written by Prof. Dr. Sacha
Prechal and is entitled ‘The Court of Justice and Effective Judicial Protection:
What Has the Charter Changed?’ This chapter looks at the implications of Article
47 of the Charter of Fundamental Rights (CFR) of the European Union and the
status of ‘effective judicial protection’ in the EU legal order after the entry into
force of the Charter. While effective judicial protection emerged as general prin-
ciple of law in the case law of the CJEU, the changes brought by the Charter’s
4 C. Paulussen et al.

express provision are multifold. The principles related to effective judicial protec-
tion appear independently in the Charter, at times with overlapping, other times
leading to gaps. There are also implications with the introduction of Article 52(1)
of the Charter, which for Article 47 CFR means interpretation in harmony with
Article 6 of the European Convention on Human Rights (ECHR), and that the
implicit limitations of Article 6 ECHR may constitute a potential trap of ‘double
limitation’. She finally notes that insofar as Article 47 would not reach the same
scope and level of protection as the general principle of effective judicial protec-
tion, this principle should continue to apply.
The contributions in Part III address fundamental rights from the perspective of
private international law.
Chapter 8 is written by Prof. Dr. Vesna Lazić and is entitled ‘Family Private
International Law Issues before the European Court of Human Rights—Lessons
to Be Learned from Povse v. Austria in Revising the Brussels IIa Regulation and
Its Relevance for Future Abolition of Exequatur in the European Union’. It analy-
ses judgments rendered by the CJEU and the European Court of Human Rights in
the Povse case relating to cross-border child abduction. Both decisions triggered
heated debate amongst family lawyers and private international law specialists
on the issues of fundamental rights and the appropriateness of certain provisions
of the regulation Brussels IIa. Especially in cases involving return orders allega-
tions of violating procedural standards under Article 6, as well as substantive law
issues under Article 8 of the ECHR are likely to arise. This contribution points to
deficiencies in the procedural legal framework of the Regulation Brussels IIa and
offers some suggestions for improving its existing procedural regulatory scheme
relating to child abduction.
In Chap. 9, entitled ‘Some Aspects of the Application and Ascertainment of
Foreign Law in the light of Article 6 of the ECHR’, Steven Stuij LL.M. focuses on
the procedural status of foreign law and how this law should be treated in cross-
border civil matters. Since the court does not have knowledge of foreign law, it
must obtain information on its content, either by using various means of ascertain-
ment or by requiring the interested party to submit a proof of content of foreign
law. When foreign law is to be applied, a number of issues arise in civil procedure
that needs to be taken into account. Thus, the question can arise about an impact
that the requirements of the ECHR, especially those contained in Article 6(1), may
have on the manner in which foreign law is treated. In particular, since the appli-
cability of a foreign law may give rise to a violation of Article 6(1) this provi-
sion affects legal proceedings before national courts, as well. In this contribution,
these potential violations of Article 6(1) and the implications for civil procedure
are addressed. The emphasis lies on a number of issues that may be affected by the
application and ascertainment of foreign law, whereby the relevant case law of the
European Court of Human Rights is also addressed.
Chapter 10, entitled ‘International Commercial Surrogacy Arrangements: The
Interests of the Child as a Concern of Both Human Rights and Private International
Law’, is written by Dr. Richard Blauwhoff and Lisette Frohn LL.M. Currently
there are no legal standards on the international level for cross-border surrogacy.
1 Introduction 5

There is a disparity of approaches in regulating the matter amongst national legal

systems. Consequently, there are numerous legal problems for both private inter-
national law (PIL) and human rights lawyers alike. This contribution addresses the
interaction between PIL and human rights in this area. The authors contend that
a feasible PIL regime could be devised, as it follows from the analysis of recent
case law of the European Court of Human Rights. Considering that there is appar-
ent diversity in regulatory and ethical approaches taken in different jurisdictions,
the aims of such a PIL regime should be modest. Thus, it should for the time
being, be reduced to providing mutual aid between states, while retaining ordre
public and public policy exception. After all, there are human rights law restric-
tions on the regulatory scheme of any PIL instrument concerning cross-border
surrogacy.
The chapters in Part IV, the final part of this book, focus on the interrelations
between sport and fundamental rights.
The first two chapters address the tensions between the benefits of arbitration as
the dispute resolution method of choice, dominated by the Court of Arbitration of
Sport (CAS) in the context of international sports disputes, and safeguarding pro-
fessional athletes’ fundamental right to a fair trial and access to justice.
In Chap. 11, entitled ‘Protecting Athletes’ Right to a Fair Trial Through EU
Competition Law: The Pechstein Case’, Dr. Antoine Duval and Prof. Dr. Ben Van
Rompuy explore the potential of EU competition law as an instrument to indi-
rectly secure an athlete’s right to a fair trial. A recent ruling of a German court
challenged the validity of arbitration clauses in favour of the CAS, which are
commonly used across the sporting world, on the basis of the German competi-
tion rules. The authors examine whether the imposition of forced CAS arbitration
clauses by sports governing bodies may also constitute an exploitative abuse of a
dominant position under EU competition law. As they argue that this answer ulti-
mately depends on the independence of the CAS, the authors scrutinize whether
the CAS fulfils this fundamental requirement.
In Chap. 12, ‘The Enforcement of CAS Arbitral Awards by National Courts
and the Effective Protection of EU Law’, Marco van der Harst LL.M. criticizes the
general lack of case law concerning the private law enforcement of EU (competi-
tion) law with regard to CAS awards. Sports governing bodies may threaten with
disciplinary sanctions if the member were to refuse to implement a CAS award.
While the resulting ‘spontaneous’ compliance with CAS (appeal) awards may be
considered as an advantage over the classical recognition and enforcement pro-
ceedings of foreign awards (‘New York convention route’), Marco van der Harst
argues that such a deliberate attempt to circumvent the enforcement proceedings
of CAS (appeal) awards puts the duty of a national court to ensure the effective
protection of EU (competition) law on the line.
In Chap. 13, the final chapter of this part and this book, ‘Rights and Wrongs of
and About Nationality in Sports Competition’, Prof. James A.R. Nafziger examines
pertinent issues concerning the determination of the nationality of athletes, such as
the growing practice of country swapping and ‘quickie citizenships’ in the interna-
tional sports arena. Normally, the regulations of sports governing bodies, subject
6 C. Paulussen et al.

to the requirements of domestic law, supply the accepted definition of national-

ity. Despite substantial litigation and arbitration of nationality issues, the trend in
international sports law is toward relaxing both durational residency requirements
and the traditional objection to dual nationality. Nafziger argues that the result-
ing opportunities for athletes and athlete-investing countries overshadow concerns
about commodification of acquired athletes or confusion about national identity.
This book covers a variety of substantive topics that will not be readily found
in other books. Indeed, it seems that nowadays, lawyers are increasingly specializ-
ing and focusing on their specific legal fields only. The editors are of the opinion,
however, that by looking over the fence, into areas that one may not be so com-
fortable with, inspiration and potential solutions for fundamental rights problems
may be found. This can for example be related to the issue of access to justice and
the right to a fair trial, which are obviously of essential importance in concretiz-
ing substantive rights, whether in the public or private law sphere. The editors are
proud to realize that one of the main protagonists of the idea that the development
of all these fields of law will contribute to international justice broadly defined
was in fact the name-bearer of our institute: Tobias Michael Carel Asser, the only
Dutch person to receive a Nobel Peace Prize.
 Part I
Public International Law
Chapter 2
Towards an EU Position on Armed Drones
and Targeted Killing?

Christophe Paulussen and Jessica Dorsey

Abstract This chapter gauges the extent to which European Union (EU)
governments share the United States’ position on armed drones and targeted kill-
ing. In doing so, it aims to assist in distilling an EU Common Position on the
use of armed drones and a legal framework for counterterrorism-related uses of
force. The chapter includes the results of a questionnaire sent to the Ministries of
Foreign Affairs, Defense, Justice and intelligence services of all 28 EU Member
States. The authors also parsed other relevant sources that could evince govern-
ments’ official positions (e.g., public statements, policy documents, etc.). In
addition to this, the chapter explores more normative pronouncements from enti-
ties other than states, including international organizations, advisory committees
and commentators, who have articulated how the issue of armed drones and tar-
geted killing should be approached within the European context. In the chapter’s

The authors are researchers in international humanitarian, criminal and human rights law at the
T.M.C. Asser Instituut in The Hague and research fellows at the International Centre for Counter-
Terrorism—The Hague (ICCT). This chapter is based on a more extensive research paper for
ICCT, see Dorsey and Paulussen 2015. The authors would like to thank their intern Alina Balta
for her outstanding assistance in the preparation of the initial paper, as well as the researchers
and analysts from the Open Society European Policy Institute, who provided the authors with
relevant background information. Moreover, they would also like to thank their intern Anna
Benedetti for providing feedback as regards Sects. 2.2.3 and 2.4. Translations are unofficial trans-
lations by the authors themselves unless otherwise explicitly noted. Of course, any mistakes are
the authors’ own.

C. Paulussen (*) · J. Dorsey

T.M.C. Asser Instituut, The Hague, The Netherlands
e-mail: [email protected]
J. Dorsey
e-mail: [email protected]

© t.m.c. asser press and the authors 2016 9

C. Paulussen et al. (eds.), Fundamental Rights in International
and European Law, DOI 10.1007/978-94-6265-088-6_2
10 C. Paulussen and J. Dorsey

conclusion, the authors summarize the findings and provide concrete recommen-
dations toward a cohesive European position on targeted killings and drone use in
counterterrorism.

Keywords Drones · Targeted killing · European Union · United States ·

International law · Human rights · Counterterrorism · Self-defense · Use of force ·
Jus ad bellum · Jus in bello

Contents
2.1 Introduction........................................................................................................................ 10
2.1.1 US Policy on the Use of Armed Drones and Targeted Killing............................... 10
2.1.2 Initial Reactions to US Policy................................................................................ 12
2.1.3 Possible Consequences of Public Silence from EU Member States...................... 12
2.1.4 Purpose and Outline of This Chapter..................................................................... 14
2.2 The Position of EU Member States on the Use of Armed Drones and Targeted Killing.... 15
2.2.1 Methodology and Content of the Questionnaire.................................................... 15
2.2.2 Statistical Results of the Questionnaire................................................................. 16
2.2.3 Substantive Results of the Questionnaire
and the Position of EU Member States31............................................................... 17
2.3 Normative Pronouncements from Other Entities Than States........................................... 21
2.3.1 Introduction............................................................................................................ 21
2.3.2 International and Regional Organizations and Institutions.................................... 22
2.3.3 Dutch Advisory Committee on Issues of Public International Law Report........... 30
2.3.4 European Council on Foreign Relations Paper...................................................... 34
2.4 Conclusion......................................................................................................................... 35
2.4.1 Authors’ Response.................................................................................................. 35
2.4.2 Looking Ahead....................................................................................................... 39
2.4.3 Concrete Recommendations.................................................................................. 42
References................................................................................................................................... 44

2.1 Introduction

2.1.1 US Policy on the Use of Armed Drones

and Targeted Killing

On 23 May 2013, United States (US) President Obama, for the very first time,
comprehensively addressed drones1 in a speech, which The New York Times’
Editorial called ‘the most important statement on counterterrorism policy since the

1With the term ‘drones’, the authors mean remotely piloted air systems (RPAS) or unmanned

aerial vehicles (UAV).

2 Towards an EU Position on Armed Drones and Targeted Killing? 11

2001 attacks, a momentous turning point in post-9/11 America’.2 In his speech,

Obama noted that ‘this new technology raises profound questions about who is
targeted and why, about civilian casualties and the risk of creating new enemies,
about the legality of such strikes under U.S. and international law, about accounta-
bility and morality.’3 After stating that drone strikes are ‘effective’4 and ‘have
saved lives’,5 Obama turned to their legality, explaining that these strikes take
place in the context of ‘a just war [against al-Qaida, the Taliban, and their associ-
ated forces], a war waged proportionally, in last resort and in self-defense’.6
As to the question in which cases it is wise or moral to execute those—accord-
ing to the US, legally justified—strikes, Obama explained that in the Afghan
war theater, ‘we will continue to take strikes against high-value al-Qaida targets,
but also against forces that are massing to support attacks on coalition forces’,
whereas
[b]eyond the Afghan theater, we only target al-Qaida and its associated forces, and even
then the use of drones is heavily constrained. America does not take strikes when we have
the ability to capture individual terrorists. Our preference is always to detain, interrogate
and prosecute them. America cannot take strikes wherever we choose. Our actions are
bound by consultations with partners and respect for state sovereignty. America does not
take strikes to punish individuals. We act against terrorists who pose a continuing and
imminent threat to the American people and when there are no other governments capable
of effectively addressing the threat. And before any strike is taken, there must be near cer-
tainty that no civilians will be killed or injured, the highest standard we can set.7

In short, the US sees itself in a just armed conflict against al-Qaida, the Taliban,
and their associated forces, which legally justifies the strikes, and these strikes,
outside of a ‘hot battlefield’ (but still within the US armed conflict paradigm), will
be targeted, as a matter of policy, against al-Qaida and its associated forces when
capture is not feasible, whenever they ‘pose a continuing and imminent threat to
the American people and when there are no other governments capable of effec-
tively addressing the threat’, and when there is ‘near certainty that no civilians will
be killed or injured’.

2‘The End of the Perpetual War’, The New York Times, 23 May 2013. www.nytimes.
com/2013/05/24/opinion/obama-vows-to-end-of-the-perpetual-war.html?pagewanted=all&_r=0.
Accessed 13 July 2015.
3The White House, Office of the Press Secretary, ‘Remarks by the President at the National

Defense University’, National Defense University, Fort McNair, Washington, DC, 23 May 2013.
www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university.
Accessed 13 July 2015.
4Ibid.
5Ibid.
6Ibid.
7Ibid.
12 C. Paulussen and J. Dorsey

2.1.2 Initial Reactions to US Policy

Human rights organizations and others cautiously welcomed Obama’s apparent

efforts to bring the secretive US drone policy more into the open, but also
remained vigilant. Greenwald for example noted that even though ‘Obama’s
explicit discussion of the “ultimate” ending of the war on terror can be reasonably
viewed as positive […] it signals nothing about what he actually will do.’8 Indeed,
on 11 December 2013, a wedding convoy in Yemen was hit by a drone strike, kill-
ing 14 persons9 and prompting Kenneth Roth, Executive Director of Human
Rights Watch, to tweet: ‘So much for Obama’s promise that drones wouldn’t be
used unless there’s a “near certainty” of no civilian casualties.’10
It can be argued that whereas the US may have made a (welcome) public move
to bring the US drone policy more out of the shadows, how the US is actually, in
practice, employing armed drones and executing targeted killings still raises seri-
ous international legal questions.11

2.1.3 Possible Consequences of Public Silence

from EU Member States

And while all of this is happening, it remains rather silent on the other side of the
pond.12 Anthony Dworkin, whose seminal paper will be examined in more detail
later in this chapter, remarked in this context:
Although some European officials have made their disagreement with the legal claims
underlying US policies clear in closed-door dialogues and bilateral meetings, EU member

8G. Greenwald, ‘Obama’s terrorism speech: seeing what you want to see’, The Guardian, 27

May 2013. www.theguardian.com/commentisfree/2013/may/27/obama-war-on-terror-speech.

Accessed 13 July 2015.
9See H. Almasmari, ‘Yemen says U.S. drone struck a wedding convoy, killing 14’, CNN, 13

December 2013. http://edition.cnn.com/2013/12/12/world/meast/yemen-u-s-drone-wedding/.

Accessed 13 July 2015.
10https://twitter.com/KenRoth/status/411710276573351936. Accessed 13 July 2015.
11See Dorsey and Paulussen 2015, pp. 2–4. One example has already been explained elsewhere

(see Paulussen and Tibori-Szabó 2014) and concerns the US’ imminence standard. The current
authors agree with Hernández when he notes: ‘[T]he elasticity of these terms raises serious ques-
tions, not least about the self-judging aspect of “imminence”, but also raises the curious question
as to how something can be simultaneously imminent and continuing. Prior statements (and the
leaked DOJ White Paper of 4 February 2013) suggest that the United States has embraced an
“elongated” concept of imminence that has attracted criticism for its inconsistency with the inter-
national law on anticipatory self-defence.’ (Hernández 2013.)
12See L. Tayler, ‘EU should press Obama on drone secrecy’, Human Rights Watch, 27 March

2014. www.hrw.org/news/2014/03/27/eu-should-press-obama-drone-secrecy. Accessed 13 July

2015. ‘EU states often deplore legally questionable actions by foreign governments. Yet they
have hesitated to do the same when it comes to their close ally, the United States.’
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