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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
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: c.paulussen@asser.nl
© 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
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
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: c.paulussen@asser.nl
J. Dorsey
e-mail: j.dorsey@asser.nl
© 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.
4Ibid.
5Ibid.
6Ibid.
7Ibid.
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.

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/.

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.’
state representatives have said almost nothing in public about US drone strikes. The EU
has so far failed to set out any vision of its own about when the use of lethal force against
designated individuals is legitimate. Nor is there any indication that European states have
made a serious effort to influence the development of US policy or to begin discussions on
formulating common standards for the kinds of military operations that UAVs facilitate.
Torn between an evident reluctance to accuse Obama of breaking international law and an
unwillingness to endorse his policies, divided in part among themselves and in some cases
bound by close intelligence relationships to the US, European countries have remained
essentially disengaged as the era of drone warfare has dawned. Yet, as drones proliferate,
such a stance seems increasingly untenable [original footnotes omitted].13
Indeed, the relative silence from the European Union (EU), one of strongest
allies of the US, could be more problematic than one might initially think. It might
give the impression that European states may be implicitly consenting to the (criti-
cized) US’ use of armed drones and targeted killings, hence giving it more legiti-
macy.14 In theory, it could thus even lead to the formation of customary
international law, ‘as evidence of a general practice accepted as law’.15 This con-
cept of international custom entails two elements, namely 1) state practice, that is:
how states behave in practice, and 2) opinio juris, namely ‘the belief by a state that
behaved in a certain way that it was under a legal obligation to act that way
[emphasis added]’.16 Abstention of protest could also assist in the process of law-
making. In the words of Shaw:
Generally, where states are seen to acquiesce in the behaviour of other states without pro-
testing against them, the assumption must be that such behaviour is accepted as legiti-
mate. Some writers have maintained that acquiescence can amount to consent to a
customary rule and that the absence of protest implies agreement. In other words where a
state or states take action which they declare to be legal, the silence of other states can be
used as an expression of opinio juris or concurrence in the new legal rule. This means that
actual protests are called for to break the legitimising process [original footnotes
omitted].17
While not necessarily agreeing with this—as silence can have other origins as
well—it is important for EU Member States to understand that silence from their
side might have a contributing effect to legitimizing a certain practice and thus that
it is important to speak up, if they believe a certain practice or a specific incident is
problematic.
13Dworkin 2013, p. 2.
14See also ibid., p. 4: ‘As one former Obama administration official put it, the US government
is subject to few domestic checks on its interpretation of international law in this area, so the
reaction of allies is “the main test and constraint for the administration […] if other states don’t
object, the conclusion is that they are not concerned”’ [original footnote omitted].
15See Article 38, para 1(b) of the Statute of the International Court of Justice.
16Shaw 2014, p. 53.
17Ibid., pp. 63–64. Cf. also Aronsson 2014.
Dworkin assumed in the statement quoted above that European states are
unwilling to endorse Obama’s policies. The current authors disagree on this point.
We simply do not know this, given the lack of information on the European stance.
However, what we do know is that there is a risk that European states may indeed
be unwilling to endorse the policies, but, by being silent, give the impression of
acquiescing to the policies nonetheless.
2.1.4 Purpose and Outline of This Chapter
Therefore, the purpose of this chapter is to find (indications for) a certain position
from the side of EU Member States. In the end, this could assist in distilling an EU
Common Position on the use of armed drones, which the European Parliament
called for in February 2014, when it ‘[e]xpresse[d] its grave concern over the use
of armed drones outside the international legal framework’18 and when it ‘urge[d]
the EU to develop an appropriate policy response at both European and global
level which upholds human rights and international humanitarian law’.19
Section 2.2 of this chapter will summarize the results of a questionnaire the
authors sent to the Ministries of Foreign Affairs, Defense, Justice and intelligence
services of all 28 EU Member States.20 In addition, it will incorporate the findings
of an examination by the authors of other relevant sources that could evince gov-
ernments’ official positions (e.g., public statements, policy documents, etc.).
The next section—Sect. 2.3—explores more normative pronouncements from
other entities than states, including international organizations, advisory commit-
tees and commentators, which have articulated how the issue of armed drones and
targeted killing should be approached within the European context.
Finally, in Sect. 2.4, the authors will conclude this chapter by providing their
own view and concrete recommendations toward a cohesive European position on
targeted killings and drone use in counterterrorism.
18The joint motion for a resolution on the use of armed drones (2014/2567 (RSP)), dated
25 February 2014, www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+
MOTION+P7-RC-2014-0201+0+DOC+PDF+V0//EN. Accessed 13 July 2015, was adopted
2 days later by 534 votes to 49 with 10 abstentions, www.europarl.europa.eu/oeil/popups/sum-
mary.do?id=1340215&t=e&l=en. Accessed 13 July 2015.
19Ibid.
20See Dorsey and Paulussen 2015, Annex 1: The Questionnaire.
2.2 The Position of EU Member States on the Use

of Armed Drones and Targeted Killing
2.2.1 Methodology and Content of the Questionnaire
On 12 November 2014, the authors sent an e-mail to various ministries of all 28

EU Member States,21 containing a detailed questionnaire, with both multiple
choice and open questions. The aim of the questionnaire was to obtain more
clarity on the position that various EU Member States take vis-à-vis the use of
armed drones, as well as on countries’ positions concerning more general perti-
nent international law questions. The survey questions encapsulated unresolved
issues garnered from a number of sources, including the authors’ first Research
Paper on this topic,22 reports written by the UN Special Rapporteur on the pro-
motion and protection of human rights and fundamental freedoms while coun-
tering terrorism, Ben Emmerson,23 the UN Special Rapporteur on extrajudicial,
summary or arbitrary executions, Christof Heyns,24 the European Council on
Foreign Relations,25 Amnesty International,26 Human Rights Watch27 and other
21This e-mail was sent to 200 e-mail addresses, with eight failed deliveries. All e-mail addresses
are on file with the authors. A response was received the day after, indicating that another state
organ was competent to deal with this question. That particular state organ was contacted on
the same day (on 13 November). On 18 November, another response followed, indicating that
another contact person was to be contacted. This happened later. On 21 November, the authors
received a response from another state organ, indicating they had not received a readable version
of the questionnaire, after which a new version was sent on 25 November.
22See Dorsey and Paulussen 2013.
23The interim report can be found on the UNGA website: ‘Report of the Special Rapporteur on
the promotion and protection of human rights and fundamental freedoms while countering ter-
rorism’, A/68/389, 18 September 2013. www.un.org/Docs/journal/asp/ws.asp?m=A/68/389.
Accessed 13 July 2015. The Special Rapporteur’s final report can be found on the Human
Rights Council’s website: ‘Report of the Special Rapporteur on the promotion and protec-
tion of human rights and fundamental freedoms while countering terrorism, Ben Emmerson’,
A/HRC/25/59, 11 March 2014. www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/
Pages/ListReports.aspx. Accessed 13 July 2015.
24UNGA, ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions’,
A/68/382, 13 September 2013. www.un.org/en/ga/search/view_doc.asp?symbol=A/68/382.

25Dworkin 2013.
26Amnesty International, ‘“Will I be next?” US drone strikes in Pakistan’. www.amnestyusa.org/
sites/default/files/asa330132013en.pdf. Accessed 13 July 2015.

27See Human Rights Watch, ‘“Between a Drone and Al-Qaeda”. The Civilian Cost of US
Targeted Killings in Yemen’. www.hrw.org/sites/default/files/reports/yemen1013_ForUpload_1

.pdf. Accessed 13 July 2015. Human Rights Watch admitted that ‘[w]hile the attacks detailed
in this report predate Obama’s speech’, it also noted that ‘the White House said on the day he
disclosed the policies that they were “either already in place or will be transitioned into place
over time.”’ (ibid., p. 2). For more on drone strikes and Yemen, the Open Society Justice
Initiative published ‘Death by Drone: Civilian Harm Caused by US Drone Strikes in Yemen’,
www.opensocietyfoundations.org/reports/death-drone. Accessed 13 July 2015.
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Ever triumphant! whose victorious charms,
Without the needless aid of high descent,
Had awed mankind, and taught the world’s great lords
To bow, and sue for grace. But who is he,
Fresh as a rose-bud newly blown, and fair
As opening lilies, on whom every eye
With joy and admiration dwells? See, see!
He reins his docile barb with manly grace.
Is it Adonis, for the chase array’d?
Or Britain’s second hope? Hail, blooming youth!
May all your virtues, with your years, improve,
Till, in consummate worth, you shine the pride
Of these our days, and, to succeeding times,
A bright example. As his guard of mutes
On the great sultan wait, with eyes deject,
And fix’d on earth, no voice, no sound, is heard
Within the wide serail, but all is hush’d,
And awful silence reigns; thus stand the pack,
Mute, and unmoved, and cowering low to earth,
While pass the glittering court, and royal pair:
So disciplined those hounds, and so reserved,
Whose honour ’tis to glad the hearts of kings:
But soon the winding horn, and huntsman’s voice,
Let loose the general chorus; far around
Joy spreads its wings, and the gay morning smiles.
BOOK III THE CHASE v. 405-429.

Unharbour’d now, the royal stag forsakes
His wonted lair; he shakes his dappled sides,
And tosses high his beamy head; the copse
Beneath his antlers bends. What doubling shifts
He tries! not more the wily hare: in these
Would still persist, did not the full-mouth’d pack,
With dreadful concert, thunder in his rear.
The woods reply, the hunter’s cheering shouts
Float through the glades, and the wide forest rings.
How merrily they chant! their nostrils deep
Inhale the grateful steam. Such is the cry,
And such the harmonious din, the soldier deems
The battle kindling, and the statesman grave
Forgets his weighty cares; each age, each sex,
In the wild transport joins; luxuriant joy,
And pleasure in excess, sparkling, exult
On every brow, and revel unrestrained.
How happy art thou, man! when thou’rt no more
Thyself; when all the pangs, that grind thy soul,
In rapture, and in sweet oblivion lost,
Yield a short interval, and ease from pain!
See, the swift courser strains, his shining hoofs
Securely beat the solid ground. Who now
The dangerous pitfall fears, with tangling heath
High-overgrown? or who the quivering bog,

Soft yielding to the step? All now is plain,
Plain as the strand, sea-laved, that stretches far
Beneath the rocky shore. Glades crossing glades,
The forest opens to our wondering view:
Such was the king’s command. Let tyrants fierce
Lay waste the world; his the more glorious part,
To check their pride; and when the brazen voice
Of war is hush’d, as erst victorious Rome,
To employ his station’d legions in the works
Of peace; to smooth the rugged wilderness,
To drain the stagnate fen, to raise the slope
Depending road, and to make gay the face
Of nature with the embellishments of art.
How melts my beating heart! as I behold
Each lovely nymph, our island’s boast and pride,
Push on the generous steed, that strokes along
O’er rough, o’er smooth; nor heeds the steepy hill,
Nor falters in the extended vale below;
Their garments loosely waving in the wind,
And all the flush of beauty in their cheeks:
While at their sides their pensive lovers wait,
Direct their dubious course; now chill’d with fear,
Solicitous, and now with love inflamed.
O grant, indulgent Heaven, no rising storm
May darken, with black wings, this glorious scene!

Should some malignant power thus damp our joys,
Vain were the gloomy cave, such as, of old,
Betray’d to lawless love the Tyrian queen:
For Britain’s virtuous nymphs are chaste, as fair;
Spotless, unblamed, with equal triumph reign
In the dun gloom, as in the blaze of day.
Now the blown stag through woods, bogs, roads, and streams,
Has measured half the forest; but, alas!
He flies in vain; he flies not from his fears.
Though far he cast the lingering pack behind,
His haggard fancy still, with horror, views
The fell destroyer; still the fatal cry
Insults his ears, and wounds his trembling heart.
So the poor fury-haunted wretch, his hands
In guiltless blood distain’d, still seems to hear
The dying shrieks; and the pale threatening ghost
Moves as he moves, and, as he flies, pursues.
See here, his slot; up yon green hill he climbs,
Pants on its brow awhile; sadly looks back
On his pursuers, covering all the plain;
But, wrung with anguish, bears not long the sight,
Shoots down the steep, and sweats along the vale;
There mingles with the herd, where once he reign’d
Proud monarch of the groves; whose clashing beam

His rivals awed, and whose exalted power
Was still rewarded with successful love.
But the base herd have learn’d the ways of men;
Averse they fly, or, with rebellious aim,
Chase him from thence: needless their impious deed,
The huntsman knows him by a thousand marks,
Black, and imboss’d; nor are his hounds deceived;
Too well distinguish these, and never leave
Their once devoted foe: familiar grows
His scent, and strong their appetite to kill.
Again he flies, and, with redoubled speed,
Skims o’er the lawn; still the tenacious crew
Hang on the track, aloud demand their prey,
And push him many a league. If haply then
Too far escaped, and the gay courtly train
Behind are cast, the huntsman’s clanging whip
Stops full their bold career: passive they stand,
Unmoved, an humble, an obsequious crowd,
As if, by stern Medusa, gazed to stones.
So, at their general’s voice, whole armies halt,
In full pursuit, and check their thirst of blood.
Soon, at the king’s command, like hasty streams
Damm’d up a while, they foam, and pour along
With fresh recruited might. The stag, who hoped
His foes were lost, now once more hears, astunn’d,

The dreadful din: he shivers every limb;
He starts, he bounds; each bush presents a foe.
Press’d by the fresh relay, no pause allow’d,
Breathless and faint, he falters in his pace,
And lifts his weary limbs with pain, that scarce
Sustain their load: he pants, he sobs, appall’d;
Drops down his heavy head to earth, beneath
His cumbrous beams oppress’d. But if, perchance,
Some prying eye surprise him, soon he rears
Erect his towering front, bounds o’er the lawn,
With ill-dissembled vigour, to amuse
The knowing forester; who inly smiles
At his weak shifts, and unavailing frauds.
So midnight tapers waste their last remains,
Shine forth a while, and, as they blaze, expire.
From wood to wood redoubling thunders roll,
And bellow through the vales; the moving storm
Thickens amain, and loud triumphant shouts,
And horns, still warbling in each glade, prelude
To his approaching fate. And now, in view,
With hobbling gait, and high, exerts, amazed,
What strength is left: to the last dregs of life
Reduced, his spirits fail, on every side
Hemm’d in, besieged; not the least opening left
To gleaming hope, the unhappy’s last reserve.

Where shall he turn? or whither fly? Despair
Gives courage to the weak. Resolved to die,
He fears no more, but rushes on his foes,
And deals his deaths around; beneath his feet
These grovelling lie, those, by his antlers gored,
Defile the ensanguined plain. Ah! see, distress’d,
He stands at bay against yon knotty trunk,
That covers well his rear, his front presents
An host of foes. O shun, ye noble train,
The rude encounter, and believe your lives
Your country’s due alone. As now aloof
They wing around, he finds his soul upraised,
To dare some great exploit; he charges home
Upon the broken pack, that, on each side,
Fly diverse; then, as o’er the turf he strains,
He vents the cooling stream, and, up the breeze,
Urges his course with eager violence:
Then takes the soil, and plunges in the flood
Precipitant; down the mid-stream he wafts
Along, till, like a ship distress’d, that runs
Into some winding creek, close to the verge
Of a small island, for his weary feet
Sure anchorage he finds, there skulks, immersed;
His nose, alone above the wave, draws in
The vital air; all else beneath the flood

Conceal’d, and lost, deceives each prying eye
Of man or brute. In vain the crowding pack
Draw on the margin of the stream, or cut
The liquid wave with oary feet, that move
In equal time. The gliding waters leave
No trace behind, and his contracted pores
But sparingly perspire: the huntsman strains
His labouring lungs, and puffs his cheeks in vain.
At length a blood-hound, bold, studious to kill,
And exquisite of sense, winds him from far;
Headlong he leaps into the flood, his mouth
Loud-opening, spends amain, and his wide throat
Swells every note with joy; then fearless dives
Beneath the wave, hangs on his haunch, and wounds
The unhappy brute, that flounders in the stream,
Sorely distress’d, and, struggling, strives to mount
The steepy shore. Haply once more escaped;
Again he stands at bay, amid the groves
Of willows, bending low their downy heads.
Outrageous transport fires the greedy pack;
These swim the deep, and those crawl up with pain
The slippery bank, while others on firm land
Engage; the stag repels each bold assault,
Maintains his post, and wounds for wounds returns.
As when some wily corsair boards a ship

Full-freighted, or from Africk’s golden coasts,
Or India’s wealthy strand, his bloody crew
Upon her deck he slings; these in the deep
Drop short, and swim to reach her steepy sides,
And, clinging, climb aloft; while those, on board,
Urge on the work of fate; the master bold,
Press’d to his last retreat, bravely resolves
To sink his wealth beneath the whelming wave,
His wealth, his foes, nor unrevenged to die.
So fares it with the stag; so he resolves
To plunge at once into the flood below,
Himself, his foes, in one deep gulf immersed.
Ere yet he executes this dire intent,
In wild disorder once more views the light;
Beneath a weight of woe he groans distress’d:
The tears run trickling down his hairy cheeks;
He weeps, nor weeps in vain. The king beholds
His wretched plight, and tenderness innate
Moves his great soul. Soon, at his high command,
Rebuked, the disappointed, hungry pack
Retire, submiss, and grumbling quit their prey.
Great prince! from thee, what may thy subjects hope;
So kind, and so beneficent to brutes?
O mercy, heavenly born! sweet attribute!
Thou great, thou best prerogative of power!

Justice may guard the throne, but, join’d with thee,
On rocks of adamant it stands secure,
And braves the storm beneath; soon as thy smiles
Gild the rough deep, the foaming waves subside,
And all the noisy tumult sinks in peace.
BOOK IV
Argument.
Of the necessity of destroying some beasts, and preserving others, for the use
of man. Of breeding of hounds; the season for this business. The choice of
the dog, of great moment. Of the litter of whelps. Of the number to be
reared. Of setting them out to their several walks. Care to be taken to
prevent their hunting too soon. Of entering the whelps. Of breaking them
from running at sheep. Of the diseases of hounds. Of their age. Of
madness; two sorts of it described, the dumb, and outrageous madness: its
dreadful effects. Burning of the wound recommended, as preventing all ill
consequences. The infectious hounds to be separated, and fed apart. The
vanity of trusting to the many infallible cures for this malady. The dismal
effects of the biting of a mad dog, upon man, described. Description of the
otter-hunting. The conclusion.
Whate’er of earth is form’d, to earth returns,
Dissolved: the various objects we behold,
Plants, animals, this whole material mass,
Are ever changing, ever new: the soul
Of man alone, that particle divine,
Escapes the wreck of worlds, when all things fail.
Hence great the distance ’twixt the beasts that perish,
And God’s bright image, man’s immortal race.
The brute creation are his property,
Subservient to his will, and for him made.
As hurtful, these he kills; as useful, those
Preserves; their sole and arbitrary king.
Should he not kill, as erst the Samian sage
BOOK IV THE CHASE v. 14-37.

Taught, unadvised, and Indian Brachmans now
As vainly preach, the teeming ravenous brutes
Might fill the scanty space of this terrene,
Incumbering all the globe. Should not his care
Improve his growing stock, their kinds might fail:
Man might once more on roots and acorns feed;
And through the deserts range, shivering, forlorn,
Quite destitute of every solace dear,
And every smiling gayety of life.
The prudent huntsman, therefore, will supply
With annual large recruits, his broken pack,
And propagate their kind. As from the root
Fresh scions still spring forth, and daily yield
New blooming honours to the parent tree.
Far shall his pack be famed, far sought his breed;
And princes, at their tables, feast those hounds
His hand presents, an acceptable boon.
Ere yet the sun through the bright ram has urged
His steepy course, or mother earth unbound
Her frozen bosom to the western gale;
When feather’d troops, their social leagues dissolved,
Select their mates, and on the leafless elm
The noisy rook builds high her wicker nest;
Mark well the wanton females of thy pack,

That curl their taper tails, and, frisking, court
Their piebald mates enamour’d: their red eyes
Flash fires impure; nor rest, nor food, they take,
Goaded by furious love. In separate cells
Confine them now, lest bloody civil wars
Annoy thy peaceful state. If left at large,
The growling rivals in dread battle join,
And rude encounter. On Scamander’s streams,
Heroes of old with far less fury fought,
For the bright Spartan dame, their valour’s prize.
Mangled and torn, thy favourite hounds shall lie,
Stretch’d on the ground; thy kennel shall appear
A field of blood: like some unhappy town,
In civil broils confused, while discord shakes
Her bloody scourge aloft, fierce parties rage,
Staining their impious hands in mutual death.
And still the best beloved, and bravest fall:
Such are the dire effects of lawless love.
Huntsman! these ills, by timely prudent care,
Prevent: for every longing dame select
Some happy paramour; to him, alone,
In leagues connubial join. Consider well
His lineage; what his fathers did of old,
Chiefs of the pack, and first to climb the rock,
Or plunge into the deep, or thread the brake,

With thorns sharp-pointed, plash’d, and briers in-woven.
Observe with care, his shape, sort, colour, size.
Nor will sagacious huntsmen less regard
His inward habits: the vain babbler shun,
Ever loquacious, ever in the wrong.
His foolish offspring shall offend thy ears
With false alarms, and loud impertinence.
Nor less the shifting cur avoid, that breaks
Illusive from the pack; to the next hedge
Devious he strays; there, every meuse he tries;
If haply then he cross the steaming scent,
Away he flies, vain-glorious; and exults,
As of the pack supreme, and in his speed
And strength unrivall’d. Lo! cast far behind,
His vex’d associates pant, and, labouring, strain
To climb the steep ascent. Soon as they reach
The insulting boaster, his false courage fails,
Behind he lags, doom’d to the fatal noose;
His master’s hate, and scorn of all the field.
What can from such be hoped, but a base brood
Of coward curs, a frantick, vagrant race?
When now the third revolving moon appears,
With sharpen’d horns, above the horizon’s brink,
Without Lucina’s aid, expect thy hopes

Are amply crown’d: short pangs produce to light
The smoking litter; crawling, helpless, blind,
Nature their guide, they seek the pouting teat,
That plenteous streams. Soon as the tender dam
Has form’d them with her tongue, with pleasure view
The marks of their renown’d progenitors;
Sure pledge of triumphs yet to come. All these
Select with joy; but to the merciless flood
Expose the dwindling refuse, nor o’erload
The indulgent mother. If thy heart relent,
Unwilling to destroy, a nurse provide,
And to the foster-parent give the care
Of thy superfluous brood: she’ll cherish kind
The alien offspring; pleased, thou shalt behold
Her tenderness, and hospitable love.
If frolick now, and playful, they desert
Their gloomy cell, and on the verdant turf,
With nerves improved, pursue the mimick chase,
Coursing around; unto thy choicest friends
Commit thy valued prize. The rustick dames
Shall at thy kennel wait, and in their laps
Receive thy growing hopes; with many a kiss
Caress, and dignify their little charge
With some great title, and resounding name

Of high import. But, cautious, here observe
To check their youthful ardour, nor permit
The unexperienced younker, immature,
Alone to range the woods, or haunt the brakes,
Where dodging conies sport: his nerves unstrung,
And strength unequal, the laborious chase
Shall stint his growth, and his rash forward youth
Contract such vicious habits, as thy care,
And late correction, never shall reclaim.
When to full strength arrived, mature and bold,
Conduct them to the field; not all at once,
But as thy cooler prudence shall direct,
Select a few, and form them, by degrees,
To stricter discipline. With these, consort
The stanch and steady sages of the pack,
By long experience versed in all the wiles,
And subtle doublings, of the various chase.
Easy the lesson of the youthful train,
When instinct prompts, and when example guides.
If the too forward younker, at the head,
Press boldly on, in wanton sportive mood,
Correct his haste, and let him feel, abash’d,
The ruling whip. But if he stoop behind,
In wary modest guise, to his own nose
Confiding sure, give him full scope to work

His winding way, and with thy voice applaud
His patience and his care; soon shalt thou view
The hopeful pupil leader of his tribe,
And all the listening pack attend his call.
Oft lead them forth where wanton lambkins play,
And bleating dams, with jealous eyes, observe
Their tender care. If at the crowding flock
He bay presumptuous, or with eager haste
Pursue them, scatter’d o’er the verdant plain,
In the foul fact attach’d, to the strong ram
Tie fast the rash offender. See! at first,
His horn’d companion, fearful and amazed,
Shall drag him, trembling, o’er the rugged ground,
Then with his load fatigued, shall turn a-head,
And, with his curl’d hard front, incessant peal
The panting wretch; till, breathless and astunn’d,
Stretch’d on the turf he lie. Then spare not thou
The twining whip, but ply his bleeding sides,
Lash after lash; and with thy threatening voice,
Harsh echoing from the hills, inculcate loud
His vile offence. Sooner shall trembling doves,
Escaped the hawk’s sharp talons, in mid air,
Assail their dangerous foe, than he once more
Disturb the peaceful flocks. In tender age,
Thus youth is train’d; as curious artists bend

The taper pliant twig, or potters form
Their soft and ductile clay to various shapes.
Nor is’t enough to breed, but to preserve
Must be the huntsman’s care. The stanch old hounds,
Guides of thy pack, though but in number few,
Are yet of great account; shall oft untie
The Gordian knot, when reason at a stand,
Puzzling, is lost, and all thy art is vain.
O’er clogging fallows, o’er dry plaster’d roads,
O’er floated meads, o’er plains with flocks distain’d,
Rank scenting, these must lead the dubious way.
As party chiefs, in senates who preside,
With pleaded reason, and with well-turn’d speech,
Conduct the staring multitude; so these
Direct the pack, who with joint cry approve,
And loudly boast discoveries not their own.
Unnumber’d accidents, and various ills,
Attend thy pack, hang hovering o’er their heads,
And point the way that leads to death’s dark cave.
Short is their span; few at the date arrive
Of ancient Argus, in old Homer’s song
So highly honour’d: kind, sagacious brute!
Not even Minerva’s wisdom could conceal
Thy much-loved master, from thy nicer sense.

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Fundamental Rights in International

and European Law Public and Private

Public International Law and Human Rights Violations by

Public and Private Enforcement of Competition Law in

Women s Rights and Religious Law Domestic and

Towards a European public law Stirn

International Sale of Goods A Private International Law

Sex, Gender and International Human Rights Law 1st

International Human Rights Law Daniel Moeckli

Indigenous Peoples, Marine Space and Resources, and

Christophe Paulussen · Tamara Takács

Tamara Takács Ben Van Rompuy

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

Library of Congress Control Number: 2015950027

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

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

Printed on acid-free paper

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

Ernst Hirsch Ballin

Part I Public International Law

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

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

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

Part II European Union Law

5 Protection of Fundamental Rights in Third Countries Through

6 Fundamental Rights and Rule of Law Promotion in EU

7 The Court of Justice and Effective Judicial Protection:

Part III Private International Law

8 Family Private International Law Issues Before the European

9 Some Aspects of the Application and Ascertainment of Foreign

10 International Commercial Surrogacy Arrangements:

Part IV International and European Sports Law

11 Protecting Athletes’ Right to a Fair Trial Through EU

12 The Enforcement of CAS Arbitral Awards by National

13 Rights and Wrongs of and About Nationality

About the Editors

Christophe Paulussen is a Senior Researcher international humanitarian law/

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

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

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

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

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

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

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

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

Christophe Paulussen and Jessica Dorsey

C. Paulussen (*) · J. Dorsey

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

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

2.1.1 US Policy on the Use of Armed Drones

aerial vehicles (UAV).

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

2.1.2 Initial Reactions to US Policy

Human rights organizations and others cautiously welcomed Obama’s apparent

2.1.3 Possible Consequences of Public Silence

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

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

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

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

2.1.1 US Policy on the Use of Armed Drones

2.1.2 Initial Reactions to US Policy

2.1.3 Possible Consequences of Public Silence

2.1.4 Purpose and Outline of This Chapter

2.2 The Position of EU Member States on the Use

2.2.1 Methodology and Content of the Questionnaire