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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
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