Maarten den Heijer

Procedural Aspects of Shared Responsibility in the European Court of Human Rights

This article explores how the European Court of Human Rights handles human rights complaints that involve multiple responsible entities and how its procedural organisation influences its capability to allocate responsibility amongst different entities. It identifies to what extent relevant procedural rules of the Court may facilitate or obstruct multilateral dispute settlement and to what extent they may contribute to the development of the substantive law on situations of “shared” responsibility. Some key procedural aspects that are discussed are: jurisdiction, standing, joinder of cases, the “indispensable parties rule”, third party intervention, fact finding, interim orders and issues of reparation.

Shared Responsibility Before the European Court of Human Rights

Compared to other international dispute settlement bodies, the European Court of Human Rights’ case law is relatively rich in situations involving a single injury and multiple contributing states. This contribution examines how the ECtHR decides such cases and explores to what extent its approach corresponds to that of the work of the International Law Commission on the topic of international responsibility. The article critically discusses the substantive criteria and doctrinal foundations employed by the ECtHR for allocating responsibility. It reflects on the adequacy of the doctrines used and examines how they can contribute to the general law on shared responsibility.

Why Union Law Can and Should Protect Stateless Persons

This contribution argues that the European Union can and should establish a legal framework for the identification and protection of stateless persons who reside in one of the Member States. Our proposal for EU legislative action is based on the worrying observation that the post-war international legal framework for protecting stateless persons has failed to take root in a majority of EU Member States. This contribution analyses the potential of the EU to address protection failures stemming from legislative inactivity of Member States. We argue that the EU is competent to address the issue and that EU action need not conflict with Member States’ prerogatives in nationality matters. The key elements of an EU directive on statelessness would consist of common criteria for i) a fair procedure for determining whether a person is stateless; ii) the standard of treatment to be accorded to stateless persons; and iii) the conditions of residence for stateless persons.

Jus Cogens and the Humanization and Fragmentation of International Law

This editorial explores how two developments—the humanization and fragmentation of international law—permeate all aspects of jus cogens: its foundations, content and consequences. The authors are particularly intrigued by the question of how the unceasing popularity of jus cogens can be reconciled with its limited role in legal practice. It has often been observed that jus cogens owes its proliferation to the increased focus on human rights. This, in turn, has yielded two effects. First, such focus on human rights has triggered greater attention for the enforcement of peremptory norms. Secondly, it has put the responsibility of non-state actors for violation of jus cogens norms on the agenda. It may not be too far-fetched to understand the reticence of states to accept the expansion of jus cogens and its effects against the background of the fear that this will weaken the power of the state, whereas one might argue that the state is rather in need of reinforcement, in view of the manifold challenges it is confronted with. Next to the process of ‘humanization’ of international law, the appeal of jus cogens can be explained from the international lawyer’s desire for a single and coherent system of law, including a more clearly established hierarchy of norms. This aspiration is primarily infused by the concern for ‘fragmentation’ of international law. However, as in the case of humanization, countervailing factors prevent a further expansion of jus cogens in international law. For one thing, jus cogens, belonging to the realm of general international law, is too coarse and inflexible to be of effective use in special sub-fields of international law. A second explanation for the limited role played by jus cogens is that specialized international or regional courts and tribunals are hesitant or may even lack the competence to pronounce on a conflict between their legal order and other branches of international law.

Where Human Rights Meet Administrative Law: Essential Elements and Limits to Delegation: European Court of Justice, Grand Chamber C-355/10: European Parliament v. Council of the European Union

Case C-355/10 deals with institutional questions and with the delicate issue of intercepting migrants at sea, and thus with fundamental rights. The European Parliament had sought the annulment of a decision of the Council, adopted under the regulatory procedure with scrutiny (PRAC), on the grounds that it exceeded the scope of the implementing power in Article 12(5) of the Schengen Borders Code. The decision laid down rules and guidelines for Frontex maritime operations.The Court annulled the contested decision because it considered that the provisions on interception measures and search and rescue involved important political choices, and that these provisions contain elements that call for the use of legislation instead of an implementing act. However, the Court maintained the effects of the decision until it is replaced by new rules within a reasonable time. In response to the judgment, the Commission presented a fresh proposal for a regulation on 12 April 2013.