Securing the Rule of Law in a World of Multilevel Jurisdiction
Name: Prof. dr. P.M.J. Mendes de Leon
Address: Steenschuur 25 / PO Box 9520, 2300 RA Leiden
Tel.: 071 – 5277763
Fax: 071 – 5277600
Coordinator: Prof. Dr N.J. Schrijver
This sub-programme focuses primarily on international law and international institutional law What are the consequences for these fields of law of the ‘multi-layered’ structure of the international legal order? The research concentrates particularly on the monopoly on the physical use of force and collective sanctions in international communities, and in particular the role of the UN Security Council: combatting international crimes (such as genocide, war crimes and terrorism); international humanitarian law, promoting sustainable development and the human rights approach in development cooperation. One of the key questions is to what extent common norms develop over time which can play a unifying role in the formation of an international legal community. What are these norms, how do they come into being, and what is their effect on the position of states, international organisations and other non-state actors (businesses, individuals)?
The underlying principle is that traditional international law can no longer cop4e with the many social and technological changes; in almost all fields of international cooperation a new balance is sought between states, international organisations and non-state entities on the basis of new or modified principles and regulations.
Coordinator: Prof. Stefaan van den Bogaert
This sub-programme focuses particularly on international economic law. The emphasis here - apart from on a number of sub-fields, such as international transport – is on the role of the European Union in the creation and maintenance of economic legislation. The EU constitutes an excellent example of a legal system which has to be able to cope with transnational problems. Market integration continues to stimulate the development of community concepts, such as harmonisation of legislation. In addition, the fast development of transnational networks, for example for energy carriers, gives rise to new legal questions. Finally, significant developments are taking place with regard to the free movement of persons. The concept of European citizenship is evolving, particularly under the influence of Luxemburg jurisprudence, and the legal position of third country nationals is also undergoing change.
At the same time, the European Union is playing an increasingly visible role in the international legal order and is also making a contribution to regulating international economic transactions. The process of globalisation, the development of law within the WTO and the relationship with strong global players (such as the US and to an increasing extent China) pose new challenges to European economic legislation.
Sub-programme 3: Trias Europea: The significance of the constitutional framework of the Lisbon Treaty for the institutional balance of governmental powers in the Netherlands-EU relationship and among EU institutions
Coordinator: Prof. Dr W.J.M. Voermans
This sub-programme focuses on the institutional balance between state powers in the relationship between the Netherlands and the EU and between the EU institutions themselves. A study will be made of how the European Union – originally established as a more or less traditional international organisation – is developing into a new independent legal order which, on many fronts, exhibits similarities with a sovereign state. This development will be followed in a limited field: on the one hand that of the development of the institutional balance between the institutions of the Union themselves (horizontal spread of power) and on the other hand the development of the relationship between the Union and the (institutions within the) member states (vertical spread of power).
Coordinator: Prof. Dr R.A. Lawson
The process of European integration is on the one hand characterised by strongly increased mobility and the formation of a European legal area, and on the other hand by the large number of players involved in the formation and safeguarding of the law: organisations such as the Council of Europe and the European Union, but also diverse bodies which are active within these organisations. What influence does this process exercise on the effective observance of fundamental rights and freedoms, as these finally gain shape in the national legal order? How do supranational supervisory bodies respond to one another’s activities? Is the observance of fundamental rights guaranteed now that greater authority is transferred to the European Union and legislation is increasingly at EU level in a growing number of policy fields – such as criminal law, migration and international civil law.
Or do the development of the classical community rules (such as the ‘four freedoms’ and the non-discrimination principle) and the establishment of an ‘Area for Freedom, Security and Justice’ offer more opportunities for human rights to be realised?
Sub-programme 5: Rule of law and development: Formation, implementation and improvement of law and governance in Developing Countries
Coordinator: Prof. dr. J.M. Otto
The consequences of the globalisation of law have become sharply manifest in developing countries, where the interplay between national legal systems, international ‘rule of law promotion’ and local normative systems of religious and customary law has resulted in various kinds of legal constellations. These tend to be fragmented and underpinned by fundamentally different sets of values, which creates all kinds of problems.
This subprogram looks at such systems and their problems, exploring formation and implementation of law, dispute settlement, people’s access to and use of state legal systems, as well as at the use of religious, notably Islamic (sharia), and customary ‘law’. It addresses fundamental questions such as how these legal systems are formed, how they operate, to what extent they are instrumental in achieving ‘development goals’ such as economic growth, social justice, authenticity, and environmental protection, and governance goals such as state-building, democracy, effective administration, and notably rule of law and realistic legal certainty.
This is done through various research activities, most of which are financed from external sources. Part of the research is of a comparative and general-theoretical nature, but the programme has clear regional foci, i.e. Indonesia, Sub-Sahara Africa, China, and, increasingly North Africa and the Islamic Middle East. Important themes are land tenure and environmental protection.
To carry out such activities the VVI combines legal scholarship with approaches from the social sciences, notably sociology/anthropology of law, and development administration. Most research projects combine a focus on national law with a focus on the functioning of law and legal institutions at local levels. Thematic expertise, language skills and country expertise are essential pre-conditions for this type of research.
Since legal systems are always a product of state-society interaction, VVI-research deploys two complementary perspectives. The first is a perspective on the state and how it uses its authority to create, implement, and enforce the law (top-down). The second is a perspective on society, pertaining to access to and use of law 'produced' by the state, and access to and use of alternative norm systems, based on custom and/or religion (in particular Islam) (bottom-up). The thematic and country expertise obtained from these through case and sector studies, serves to develop middle range theories which can be applied in the practice of legal development co-operation. Central to such theories are the following concepts, which can serve as yardsticks in analysing and evaluating legal processes:
- The rule of law, as a set of internationally agreed standards and principles to guarantee procedural and substantive justice
- Realistic legal certainty, which refers to a situation where citizens can be reasonably certain of what their legal rights and obligations are, consider these rights and obligations as legitimate, and where they can actually realise their rights to a considerable extent through legal institutions.