Assignments week 4 Uitwerkingen
Part A: True/False Questions
1. The scope of a state’s human rights obligations are limited to the
territory of that state.
The core legal question is whether the scope of a state’s human rights
obligations are limited to the territory of that state. In principle, human
rights apply towards a state and the individual, which means that there is
a vertical relationship on the territory of that state. Jurisdiction outside the
territory of a state is confirmed and explicitly stated in the Wall Opinion.
The European Court of Human Rights also referred to this in several cases.
This statement is false because it incorrectly states that the scope of a
state’s human rights obligation is limited to the territory of that state.
2. The Human Rights Committee, The European Court of Human Rights,
The Inter-American Court of Human Rights and the African
Commission on Human and Peoples Rights may all receive both
interstate and individual complaints.
The core legal question is whether the Human Rights Committee, The
ECHR (…) may all receive both interstate and individual complaints. With
regard to the Human Rights Committee the ICCPR + The optional protocol
to the ICCPR must be signed by a state for an individual to make a
complaint. This statement is true.
3. The ICC has primary responsibility for investigating and prosecuting
the international crimes.
The core legal question is whether the ICC had primary responsibility for
investigation and prosecution international crimes. The relevant source is
the Rome Statute of the ICC. The states themselves should make sure that
they investigate and prosecute the crimes which are stated in art. 5. This
is on the basis of art. 17, principle of complementarity. Art. 13 states the
exercise of jurisdiction the trigger mechanism of the ICC. This statement
is false.
4. In the Tadic Appeals Judgement, the Appeals Chamber of the ICTY
found that, given the special nature of international crimes, not only
the material perpetrators, but all those who aid and abet in the
perpetration of such crimes can be held criminally liable under the
theory of Joint Criminal Enterprise.
The core legal question is whether given the special nature of
international crimes, not only the material perpetrators, but all those who
aid and abet in the perpetration of such crimes can be held criminally
liable under the theory of Joint Criminal Enterprise according to the Tadic
Appeals Judgement, the Appeals of Chamber of the ICTY.
Each member of a joint criminal enterprise is committed as a perpetrator,
which makes the person a risk to receive the highest sanction. Each
, individual member is thus individually responsible for the crimes that have
been committed by the group within the common plan. This statement if
False.
Part B: Problem questions
1. Assume that you wok as a junior associate at a boutique law firm in
The Hague.
Further, assume that Mr. X seeks legal advice in relation to a labor
dispute with his employer, the European Patent Office (EPO) in
Rijswijk. The EPO is an international organization, which was
established in 1977 pursuant to the European Patent Convention in
order to enhance the protection of patents in Europe and provide for
a uniform procedure for the grant of patents. He would like to
instigate legal proceedings against the EPO before the District Court
of The Hague.
The partner of the firm who is responsible for the case of Mr. X
requests your help to draft preliminary advice to Mr X. She realizes
that the EPO enjoys immunity from the adjudicative jurisdiction of
the Netherlands pursuant to the European Patent Convention and
that the District Court of The Hague would therefore have nu
jurisdiction to hear a dispute between Mr X and the EPO. However,
she would like to know to what extent Mr X could rely on at. 6 ECHR,
which embodies a right to court, to have the case of Mr X heard by
the District Court of The Hague, despite te immunity of the EPO en
she asks you to draft a brief memorandum on this issue.
Issue: Considering that Mr X wants to start proceedings at the
District Court of The Hague, the core legal question is whether at. 6
provides the right to the District Court of The Hague, despite the
fact that EPO has immunity under the European Patent Convention.
Rule: art. 6 Convention for the Protection of Human Rights. Case
law: Stichting Mothers of Srebrenica and Others vs. NL.
Art. 6 is not an absolute right, restrictions are possible under certain
conditions. These conditions are set out in the Stichting Mother of
Srebrenica.
- The limitation must pursue a legitimate objective of the
restriction; and
- There must be proportionality between the restriction and aim
that has to be achieved.
Analyse: Mr X works for EPO and he wants to rely on art. 6 of the
Convention for the protection of Human Rights. However, NL has
immunity of the EPO. The question is whether it is possible that this
immunity of the EPO restricts Mr X his right to a fair trial under art.
6.
Part A: True/False Questions
1. The scope of a state’s human rights obligations are limited to the
territory of that state.
The core legal question is whether the scope of a state’s human rights
obligations are limited to the territory of that state. In principle, human
rights apply towards a state and the individual, which means that there is
a vertical relationship on the territory of that state. Jurisdiction outside the
territory of a state is confirmed and explicitly stated in the Wall Opinion.
The European Court of Human Rights also referred to this in several cases.
This statement is false because it incorrectly states that the scope of a
state’s human rights obligation is limited to the territory of that state.
2. The Human Rights Committee, The European Court of Human Rights,
The Inter-American Court of Human Rights and the African
Commission on Human and Peoples Rights may all receive both
interstate and individual complaints.
The core legal question is whether the Human Rights Committee, The
ECHR (…) may all receive both interstate and individual complaints. With
regard to the Human Rights Committee the ICCPR + The optional protocol
to the ICCPR must be signed by a state for an individual to make a
complaint. This statement is true.
3. The ICC has primary responsibility for investigating and prosecuting
the international crimes.
The core legal question is whether the ICC had primary responsibility for
investigation and prosecution international crimes. The relevant source is
the Rome Statute of the ICC. The states themselves should make sure that
they investigate and prosecute the crimes which are stated in art. 5. This
is on the basis of art. 17, principle of complementarity. Art. 13 states the
exercise of jurisdiction the trigger mechanism of the ICC. This statement
is false.
4. In the Tadic Appeals Judgement, the Appeals Chamber of the ICTY
found that, given the special nature of international crimes, not only
the material perpetrators, but all those who aid and abet in the
perpetration of such crimes can be held criminally liable under the
theory of Joint Criminal Enterprise.
The core legal question is whether given the special nature of
international crimes, not only the material perpetrators, but all those who
aid and abet in the perpetration of such crimes can be held criminally
liable under the theory of Joint Criminal Enterprise according to the Tadic
Appeals Judgement, the Appeals of Chamber of the ICTY.
Each member of a joint criminal enterprise is committed as a perpetrator,
which makes the person a risk to receive the highest sanction. Each
, individual member is thus individually responsible for the crimes that have
been committed by the group within the common plan. This statement if
False.
Part B: Problem questions
1. Assume that you wok as a junior associate at a boutique law firm in
The Hague.
Further, assume that Mr. X seeks legal advice in relation to a labor
dispute with his employer, the European Patent Office (EPO) in
Rijswijk. The EPO is an international organization, which was
established in 1977 pursuant to the European Patent Convention in
order to enhance the protection of patents in Europe and provide for
a uniform procedure for the grant of patents. He would like to
instigate legal proceedings against the EPO before the District Court
of The Hague.
The partner of the firm who is responsible for the case of Mr. X
requests your help to draft preliminary advice to Mr X. She realizes
that the EPO enjoys immunity from the adjudicative jurisdiction of
the Netherlands pursuant to the European Patent Convention and
that the District Court of The Hague would therefore have nu
jurisdiction to hear a dispute between Mr X and the EPO. However,
she would like to know to what extent Mr X could rely on at. 6 ECHR,
which embodies a right to court, to have the case of Mr X heard by
the District Court of The Hague, despite te immunity of the EPO en
she asks you to draft a brief memorandum on this issue.
Issue: Considering that Mr X wants to start proceedings at the
District Court of The Hague, the core legal question is whether at. 6
provides the right to the District Court of The Hague, despite the
fact that EPO has immunity under the European Patent Convention.
Rule: art. 6 Convention for the Protection of Human Rights. Case
law: Stichting Mothers of Srebrenica and Others vs. NL.
Art. 6 is not an absolute right, restrictions are possible under certain
conditions. These conditions are set out in the Stichting Mother of
Srebrenica.
- The limitation must pursue a legitimate objective of the
restriction; and
- There must be proportionality between the restriction and aim
that has to be achieved.
Analyse: Mr X works for EPO and he wants to rely on art. 6 of the
Convention for the protection of Human Rights. However, NL has
immunity of the EPO. The question is whether it is possible that this
immunity of the EPO restricts Mr X his right to a fair trial under art.
6.
