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Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad

Published on December 11, 2015        Author: 

This is a follow-up to my July post on Action for Annulment Frente Polisario v Council (Case T-512/12), a case before the General Court of the European Union (GC) in which Frente Polisario – the National Liberation Movement for Western Sahara – seeks the Annulment of the EU Council decision adopting the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. The GC delivered its judgment yesterday, both recognizing the standing of Frente Polisario and granting the (partial) annulment of the decision, with implications for EU-Morocco relations and for EU external relations law more broadly.

(1) Standing of Frente Polisario under Article 263 TFEU

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

By the same token, the Court fell short of recognizing the Frente’s legal personality under international law. Read the rest of this entry…

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“Legitimized Self-Defense” – Quo Vadis Security Council?

Published on December 10, 2015        Author: 

I submit that United Nations Security Council (UNSC) resolution 2249 (2015) is – at least de facto – another step towards a reconfiguration of the UN collective security system. The call upon UN members to take “all necessary measures” has to be seen in the context of the self-defense narrative employed by most states forming the “Global Coalition to Counter ISIL” to justify their operations. Irrespective of the resolution’s ambiguity, it is hardly doubtful that it de facto yields a legitimizing effect for this narrative, inevitably endorsing it – even if the term “self-defense” is not mentioned once. Against this background, it seems that the UNSC actually assists in installing self-defense measures as a substitute for collective action under Chapter VII of the UN Charter (UNC). This recalibration of the UNSC’s role in the context of the use of force deserves a second thought. Self-defense is – irrespective of the legality of its invocation in specific cases de lege lata – hardly the right tool to deal with the global and permanent threat of terrorism.

As has already been excellently illustrated by Dapo Akande and Marko Milanovic, the resolution’s main characteristic is its ambiguity (see EJIL talk! Blog). Its vagueness is obviously the result of political necessities and compromise. In my view, however, interpreting the resolution from the perspective of an objective observer, it is clear that the UNSC did not authorize measures based on Art. 39 et seq. of the UNC. It is true that the term “necessary measures” is generally connoted with the authorization of force. It is likewise true that the preamble of the resolution which classifies “terrorism in all forms and manifestations” as “threats to international peace and security” alludes to the wording of Art. 39 UNC. But any “authorizing” tenor is neutralized by the clauses “calls upon” and “in compliance with international law, in particular with the United Nations Charter […].” The UNSC neither authorizes nor decides. It is generally acknowledged that an authorization within Chapter VII of the UNC requires explicit wording – a requirement the resolution (deliberately) does not meet. The call upon the members to “eradicate” ISIL safe havens, however, implies the use of force. Since the UNC establishes a comprehensive ban on the use of force, only self-defense or consent remain as justifications for military operations against ISIL within Iraq and Syria outside of a UNSC authorization.

So to put the resolution’s message in a nutshell: States are called upon to use force against ISIL by exercising their right to self-defense if its prerequisites are given or to urge states hosting ISIL to give their consent to armed operations on their territory if self-defense cannot be invoked. To this extent it could be argued that the resolution says nothing, but merely refers to the law as it stands. Neither does it authorize the use of force nor does it give the self-defense narrative of the “Global Coalition” unequivocal blessing. But this is only true if the context of the resolution is not also taken into account. Read the rest of this entry…

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Claims by Dual Nationals under Investment Treaties: A New Form of Treaty Abuse?

Published on December 9, 2015        Author: 

The issue of treaty abuse (or ‘treaty shopping’) has received heightened attention recently in the context of the on-going negotiations for the conclusion of the Transatlantic Trade and Investment Partnership (TTIP). In a public consultation on the potential inclusion of an investor-State arbitration clause in TTIP, the European Commission (EC) has raised concerns regarding the investors’ manipulation of corporate nationality through the so-called “shell” or “mailbox” companies in order to take advantage of the protection afforded by investment treaties (See Public consultation on modalities for investment protection and ISDS in TTIP, Question 1, p. 18). In line with the contributions made by many of the participants involved in the consultation process, the EC has stated that these companies should be excluded from the scope of TTIP. Accordingly, the EC has proposed to narrow the definition of the term ‘investor’ by requiring that a juridical person must have ‘substantial business activities’ in the territory of a signatory State (See Public consultation on modalities for investment protection and ISDS in TTIP, Question 1, pg. 18).

The foregoing requirement certainly responds to the criticisms of inappropriate treaty shopping, and it may be considered as a useful tool to prevent corporate investors from obtaining treaty protection by illegitimate means. Yet, the EC overlooks the fact that, in addition to corporations, investment treaties might also be subject to abuse by individual investors. In this context, a new type of BIT claim is now emerging in the field of investor-State arbitration, whereby investors who hold the nationality of both contracting parties to the treaty (i.e. dual nationals) make their own State a respondent before an international tribunal. Read the rest of this entry…

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German Parliament decides to send troops to combat ISIS − based on collective self-defense “in conjunction with” SC Res. 2249

Published on December 8, 2015        Author: 

On 4th December 2015, after a parliamentary debate on 2d December, the German Parliament decided, with 445 positive votes (146 negative votes and seven abstentions), to honour the German’s Government’s formal request (BT Drucksache 18/6866 of 1st Dec. 2015 ) to send up to 1200 troops to combat ISIS. A formal parliamentary decision to deploy military abroad is required by the German Constitution (Basic Law) and a German 2005 law (Parlamentsbeteiligungsgesetz) which codifies prior constitutional case law.

The international legal basis for the deployment decision, as officially claimed by the Government, is “Art. 51 of the UN Charter in conjunction with Art. 42(7) TEU as well as resolutions 2170 (2014), 2199 (2015), 2249 (2015) of the Security Council.” In its request to Parliament, the Government explained that action against IS (by the US, Australia, the UK, and France) “in exercise of collectives self-defence under Art. 51 of the UN Charter is covered by resolution 2249 (2015).” (BT Drs. 18/1866, p. 3). The EU-assistance clause as invoked by France on 13th November, to which all EU member States responded on 17th November with the promise for assistance, has been analysed here by Carolyn Moser. The substance of the IS resolution 2249 has been analysed on EJIL talk! by Marc Weller, by Dapo Akande and Marko Milanovic.

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Blockbuster Strasbourg Judgment on Surveillance in Russia

Published on December 7, 2015        Author: 

Last Friday a unanimous Grand Chamber of the European Court delivered a hugely important judgment in Roman Zakharov v. Russia, no. 47143/06, in which it found serious and systematic faults with the Russian legislative framework regulating the surveillance of mobile communications. This is set to be a leading Strasbourg authority on assessing the compliance of surveillance measures with human rights law, a topic we’ve already extensively discussed on the blog. This judgment important for a number of reasons.

First, because a unanimous Grand Chamber reaffirmed much of relatively older or Chamber-based case law, and applied the principles it identified robustly. This provides an important indication that the Court remains acutely aware of the dangers surveillance programs possibly pose to democratic societies, and that it will also scrutinize such programs robustly in the cases shortly coming before it, e.g. against the United Kingdom. I must say that I was particularly struck by how the Russian judge in the Court, Judge Dedov, concluded his concurring opinion with a quote from Edward Snowden – with the added irony of Snowden still continuing his sojourn in Russia, the very country whose regulatory system of surveillance the Court exposed as so sorely inadequate.

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Announcements: Frankfurt Investment Law Workshop; NYU School of Law Fellowships; CfP Building Consensus on European Consensus; 5th Annual Junior Faculty Forum for International Law

Published on December 6, 2015        Author: 

1. Frankfurt Investment Law Workshop: ICSID at 50: Investment Arbitration as a Motor of General International Law? For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law. This next workshop will run from 11-12 March 2016 and asks whether and to what extent international investment law and investor-State arbitration are ‘motors of general international law’? Contributions to this workshop focus on three areas in which investment law and arbitration might be seen as a motor of legal development: the law of dispute settlement, the law of treaties, and state responsibility. The program is available here; for edited collections that have grown out of earlier Frankfurt Investment Law Workshops see herehere and here. If you are interested in participating, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt at S.Schimpf {at} jur.uni-frankfurt(.)de by 28 February 2016.

2. New York University School of Law Fellowships. New York University School of Law is currently accepting applications for the the following fellowships: (1) the Global Fellows Program, which offers an opportunity for academics, practitioners, government officials and post‐doctoral scholars from around the world to spend a semester or academic year in residence at NYU School of Law. The deadline for applications is 11 January 2016. See here for more information and to apply. Questions should be sent to law.globalvisitors {at} nyu(.)edu; (2) the Emile Noël Fellowship Program, the principle objective of which is scholarship and the advancement of research on the themes prioritized by the Jean Monnet Center for International and Regional Economic Law & Justice. For more information and to apply see here. The deadline for applications is 11 January 2016. Questions should be sent to JeanMonnet {at} nyu(.)edu; and (3) the Visiting Doctoral Researcher Program. Visiting Doctoral Researchers are doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. The deadline for applications is 15 February 2016. See here for more information and to apply. Questions should be sent to jsdcoordinator {at} nyu(.)edu.

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A “Legally Binding Treaty” or Not? The Wrong Question for Paris Climate Summit

Published on December 4, 2015        Author: 

Both media and negotiators are spending an inordinate amount of time on whether the Paris climate summit starting this week should lead to a “legally binding treaty”. For the EU Commission, it “must be”. For US Secretary of State John Kerry “definitely not”.

For realist scholars of international relations this obsession is puzzling. In the absence of an international police force, why care about whether a commitment is legally binding? For international lawyers, in contrast, it seems to confirm the self-standing moral authority of their discipline. Why else would politicians hackle about bindingness?

The Paris red herring

Yet, “to treaty or not to treaty” is really not the question. Paris will certainly be a treaty and not be a treaty. Read the rest of this entry…

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How the Ambiguity of Resolution 2249 Does Its Work

Published on December 3, 2015        Author: 

Yesterday, after 10 hours of debate, the UK Parliament approved the use of UK armed forces against ISIS on the territory of Syria; the German Bundestag also debated the use of force and will vote on the involvement of Germany in the coalition operation tomorrow. I found it particularly interesting to observe how the constructive ambiguity of the Security Council’s resolution 2249 (2015), that Dapo and I extensively addressed in our previous post, was used by the MPs during their debate.

When it comes to the UK Government’s official legal position on the use of force in Syria, they have been very careful not to rely on the resolution as a separate source of authority, but as a (unanimous) reaffirmation of the legal authority they already thought they had. That position is articulated most clearly in this memorandum from the Prime Minister to Parliament’s Foreign Affairs Committee, at pp. 15-17, and the legal bases for the use of force set out there are (1) the collective self-defence of Iraq and (2) the individual self-defence of the UK against ISIS, both pursuant to Article 51 of the Charter. The resolution is used to buttress these two claims, for example with the memorandum stating that: “Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks.”

Similarly, in his statement to the House of Commons on 26 November regarding that memorandum, the Prime Minister stated that:

It is a long-standing constitutional convention that we don’t publish our formal legal advice. But the document I have published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. The right of self‑defence may be exercised individually where it is necessary to the UK’s own defence… …and of course collectively in the defence of our friends and allies. Mr Speaker, the main basis of the global coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. Iraq has a legitimate government, one that we support and help. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria, and their ongoing attack in Iraq… ….and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq – or indeed attacks on us. It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.

And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. We should be clear about what this resolution means and what it says. The whole world came together – including all 5 members of the Security Council – to agree this resolution unanimously. The resolution states that ISIL, and I quote: “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, and again I quote: to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL… …and crucially is says that we should, and again I quote: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”

Note how despite saying that “we should be clear about what this resolution means and what it says” the Prime Minister only proceeds to quote the resolution’s language, without explaining in any way whatsover (let alone clearly so) what it means and what it says. (By the way, isn’t that just wonderful howe he did that?)

Read the rest of this entry…

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Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC

Published on December 3, 2015        Author: 

Editor’s Note: This is the author’s concluding post in the EJIL:Debate! regarding an article in the current issue of EJIL Vol. 26 (2015) No 2, by Stefan Talmon. The original post is here. See also the posts discussing the article by Omri Sender and Michael Wood, Harlan G. Cohen and Fernando Lusa Bordin.

I am very grateful to Sir Michael Wood and Omri Sender, as well as Harlan G. Cohen and Fernando Lusa Bordin, for their thoughtful comments on my EJIL article. Both Harlan and Fernando seem to agree with my main propositions and, in particular, with the proposition that the ICJ, in order to determine rules of customary international law, uses induction and deduction as well as assertion. They raise interesting questions that I did not address in my article, such as why the ICJ was not more interested in developing a clear methodology and why States might actually prefer ‘methodological mayhem’, or the flexibility of methodological uncertainty, over the strict application of the inductive method or a relaxation of the demands of that method. Their contribution takes the debate further and may be read as a complement to my article.

In the following, I will focus on the comments of Sir Michael Wood and Omri Sender, who are more critical of my propositions. I will only deal with their substantive comments and leave readers to decide for themselves how many eyebrows they would like to raise while considering what the authors identified as ‘some bold statements’ in my article without, however, specifying their concerns. Let me respond to their counter propositions one by one before offering some final remarks on the work of the ILC, and thus Sir Michael’s work as its Rapporteur, on the identification of customary international law. Read the rest of this entry…

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Induction, Assertion and the Limits of the Existing Methodologies to Identify Customary International Law

Published on December 2, 2015        Author: 

Professor Talmon’s article on the methodologies employed by the International Court of Justice to ascertain custom is as important as it is timely now that the International Law Commission is advancing with its study on the identification of customary international law. To contribute to the debate, I propose to elaborate on a crucial question that the piece raises. Why is it that the Court so often resorts to ‘asserting’ customary international law instead of providing more robust reasoning to back up the rules that it identifies? Though the precise reasons why the Court takes the approach it does are a matter for speculation, I suspect that this has to do with limitations that are inherent to the standard methodology to establish custom (the ‘inductive method’, to use Professor Talmon’s terminology), in the shaping of which the Court itself has played a large part.

As Professor Talmon suggests, systemic reasoning – argument by principle and argument by analogy – has been a major catalyst for development in international law, filling gaps that would be left behind if the inductive method were applied. Yet, the inductive method is the best accepted methodology to identify custom insofar as it encapsulates the prevailing view as to what is required by the ‘rule of recognition’ of international law.

The problem with that ‘rule of recognition’ is that it does not allow us to reach any firm conclusions as to the existence of particular rules of custom. That becomes clear when one dissects the inductive method as defined and applied by the International Court. Read the rest of this entry…

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