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United in Mixity? The Future of the EU Common Commercial Policy in light of the CJEU’s recent case law

Published on February 2, 2018        Author:  and
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The post-Lisbon Common Commercial Policy in the field of foreign investment policy

The Lisbon Treaty for the first time expressly attributed exclusive competence to the EU in the area of foreign investment by adding foreign direct investment (FDI) to the scope of the Common Commercial Policy (CCP). The European Commission took not long to put these newly-won competences into use by designing its new European international investment policy. This new investment policy revealed the Commission’s broad interpretation of the competences conferred by the Lisbon Treaty. According to the Commission, the EU’s new common international investment policy should address both direct investment – i.e. investment made “with a view to establishing or maintaining lasting economic links” – and indirect investment, namely all those transactions involving debt or equity securities that do not establish a lasting economic link. Moreover, the common investment policy, as envisaged by the Commission, should cover both the pre-establishment and post-establishment phase.

The EU-Singapore FTA (EUSFTA) was the first trade agreement to rely on the EU’s competence in the field of common commercial policy as expanded post-Lisbon. This agreement embraces a wide range of fields, including trade in goods and services, government procurement, intellectual property rights, and investment liberalization and protection. All too predictably, the composite content of the agreement and, particularly, the inclusion of a chapter specifically dealing with investment protection and investment dispute settlement soon prompted the question of whether the EU’s new exclusive competence could be interpreted as encompassing both direct and indirect investment as well as investor-State dispute settlement mechanism (ISDS). Needless to say, the answer to this question has important practical implications. If the above policy fields and all other matters contained in the FTA were to fall within the scope of exclusive competence of the EU, then such agreements can be concluded as “EU-only” agreements. If these competences are shared, the agreement can be concluded either by the EU alone or as a mixed agreement, namely a treaty to which both the Member States and the Union are parties. Commentators usually distinguish this type of mixity (facultative mixity) from compulsory mixity, which applies when the agreement in question covers both matters falling within the exclusive competence of the European Union and matters falling within the exclusive competence of the Member States.

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The Turkish Operation in Afrin (Syria) and the Silence of the Lambs

Published on January 30, 2018        Author: 
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Operation Olive Branch

On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria (“Operation Olive Branch“). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: “[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.” (UN Doc. S/2018/53; emphasis added). Two elements are troublesome in this official Turkish justification.

Non-state armed attacks?

First, it is controversial whether armed attacks of the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. The current law (both Charter-based and treaty-based) is in flux, and still seems to demand some attribution to the state from which the attacks originate. (See for a collection of diverse scholarly opinion, ranging from “restrictivists” to “expansionists”: Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).

The ICJ case-law has not fully settled the question (see for state-centred statements: ICJ, Oil platforms 2003, paras. 51 and 61; ICJ Wall opinion 2004, para. 139). Read the rest of this entry…

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Ecuador Seeks to Confer Diplomatic Status on Julian Assange: Does this Oblige the UK to Allow Him to Leave the Embassy & Is the Matter Headed to the ICJ?

Published on January 25, 2018        Author: 
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There is a recent twist in the Julian Assange saga leading to new claims that the UK has the legal obligation to allow Assange to leave the Ecuadorian embassy in London without arresting him. In December, Ecuador granted Assange its nationality following which it then purported, this January, to appoint Julian Assange as one of its diplomats to the UK (see here). Apparently, the UK rejected that appointment. It has now been reported by Reuters that a legal team is working on filing a case at the International Court of Justice in order to have Assange’s Ecuadorean diplomatic status affirmed under international law. The strategy being pursued by Ecuador is a very interesting one raising tricky questions of diplomatic law. Undoubtedly, Ecuador was aware that the UK would seek to deny diplomatic status to Assange. However, Ecuador argues that what has happened is that while it has appointed Assange as a diplomat, what the UK has done is to declare him persona non grata, and that having done that, the UK now has an obligation to allow Assange to leave the UK within a reasonable period of time, whilst enjoying diplomatic immunities within that period of time.

There are a number of issues that arise as a result of these developments. First, is the issue of whether Ecuador has a unilateral right to appoint Assange as a member of its diplomatic staff, or whether instead, the approval of the UK was required for the conferral of diplomatic status on Assange. Second, assuming that Ecuador is right, and that as a matter of international law Assange did at some point in time have diplomatic status because of a unilateral right of appointment of Ecuador, does the rejection of his status by the UK impose an obligation on the UK to allow him to leave the embassy, and indeed leave the UK, with the immunities that a diplomat would ordinarily be entitled to. Third, is there a basis for the ICJ to hear and determine the matter between those two states?

Let me start with the question of ICJ jurisdiction. Read the rest of this entry…

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Public Opinion Survey in Serbia Sheds Light on ICTY Legacy

Published on January 22, 2018        Author: 
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In anticipation of the closing of the ICTY, there has been plenty of discussion, including at EJIL: Talk! (see here), on the court’s impact in the former Yugoslavia, particularly relating to the public’s acceptance of ICTY findings and reconciliation. I’d like to contribute to this discussion with findings from the most recent public opinion survey conducted in Serbia – published in December 2017 (“Awareness of citizens of Serbia about the wars of the ‘90s, war crimes and war crimes trials” designed by the Humanitarian Law Center, commissioned by the Serbian daily Danas and conducted by Demostat – available only in Serbian here).

The latest survey mostly confirms what we already know from those previously conducted – revisionism and denialism are prevalent, and ethnic bias is entrenched – but it also provides additional information about these phenomena.

Revisionism and denialism

The latest survey confirms that there is overwhelming public distrust in the ICTY and its findings. For example, 56% of the respondents find the ICTY to be partial and biased, while only 6% believe the opposite. Almost half of the respondents consider that the ICTY didn’t contribute in any way to establishing the truth about the wars (p. 17). In line with the findings from earlier surveys, only 12% believe that what happened in Srebrenica is as established in ICTY judgments, while the ignorance pertaining to other ICTY-adjudicated crimes is even greater (e.g. regarding Ovčara 64% don’t know what happened, for the siege of Sarajevo it is 71%, for mass graves in Serbia 83%).

Serbia, through its highest officials, has a long record of refusing to accept findings made by the ICTY, particularly relating to the Srebrenica genocide. In 2015, upon Serbia’s request, Russia vetoed a Security Council resolution intending to mark the 20th anniversary of the genocide. Most recently, the Serbian Parliament amended its Criminal Code, supposedly in order to align it with the EU acquis, and criminalized the public denial of genocide but – and here’s the twist – did so only if the crime has been established by Serbian courts or the ICC. The amendment does not include the ICTY or ICJ – the only two courts which have adjudicated on the Srebrenica genocide. Read the rest of this entry…

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EJIL Debate. Thirlway’s Rejoinder

Published on January 19, 2018        Author: 
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I am grateful to Professor d’Aspremont for his interesting and courteous response to my somewhat critical piece. I think we agree . . . that there is plenty on which we agree to differ! However, may I mention a few points?

A minor linguistic matter: the terms ‘the logic of sources’ and ‘the logic of interpretation’ seem to me unfortunate. I trust that Prof. d’Aspremont will agree that the rules of logic, or if you like of logical argument, are surely identical whatever the subject under discussion. The postulates and the facts are unique to the context and the problem examined, but to arrive at an intellectually correct result, the reasoning processes must follow the universal rules of logic; the expressions quoted seem to undermine this universality.

Prof. d’Aspremont does not find my use of the concept of opposability helpful. Maybe my point will be clearer if expressed in this way: in the relevant part of the ICJ Whaling judgment, the Court was, in his view engaged in a process of interpretation, but applied to it the intellectual approach appropriate to a problem of sources.  But was it a process of interpretation? Before the Court could enquire into what exactly were the obligations of Japan under the Whaling Convention as interpreted by the challenged resolution – a matter of interpretation – it had to decide whether the resolution was relevant at all – a question of sources (consent to a treaty-instrument). If the resolution was relevant, its effect on the reading of the Convention would be a matter of interpretation; but that stage was never reached.

Prof. d’Aspremont denies that he is ‘thinking from the Bench’; but surely whenever a scholar criticises a judicial decision, he is in effect saying ‘This is what the Court ought to have said: this is what my dissenting opinion would have said had I been among the judges?’ And to my mind this is so whether the critic is saying ‘The Court was wrong on its own premises’, or contending that ‘The matter should have been approached in a different way, viz. .  . .’

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Hybrid Threats and the United States National Security Strategy: Prevailing in an “Arena of Continuous Competition”

Published on January 19, 2018        Author:  and
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The dividing line between war and peace is blurred. This is one of the messages emerging from the National Security Strategy (NSS) of the United States of America adopted in December 2017. The United States is accustomed to viewing the world through the binary lens of war and peace, yet in reality, warns the new National Security Strategy, international relations is an “arena of continuous competition” (p. 28).

This is not exactly a new theme. The idea that war and peace are relative points on a continuous spectrum of confrontation, rather than mutually exclusive conditions, has become quite popular in recent years. Writing in 2013, General Valery Gerasimov, Chief of the General Staff of the Russian Federation, observed that the 21st century has seen a tendency “toward blurring the lines between the states of war and peace”. Speaking in 2015, Sir Michael Fallon, the former British Secretary of State for Defence, declared that contemporary adversaries are deliberately seeking to “blur the lines between what is, and what is not, considered an act of war”. More recently, Jens Stoltenberg, NATO’s Secretary General, suggested that in the past “it was easy to distinguish whether it was peace or war … [b]ut now there’s a much more blurred line”.

The fluidity of war and peace is central to the vocabulary of “gray zone conflict” and “hybrid warfare”. Both concepts are preoccupied with the strategic challenges that adversaries operating across multiple domains present. The notion of gray zone conflict puts the emphasis on the sphere of confrontation, concentrating on the fact that adversaries operate in the area of ambiguity that lies between the traditional state of war and state of peace (see US SOCOM, The Gray Zone). By contrast, the notion of hybrid warfare emphasises the modus operandi adopted by certain adversaries and competitors, focusing on their use of the full range of military and non-military means in a highly integrated manner (see NATO, Wales Summit Declaration, para. 13). Read the rest of this entry…

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EJIL Debate. The Whaling case and the Duty to Cooperate: Responding to Professors Thirlway and d’Aspremont

Published on January 17, 2018        Author: 
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I am puzzled by the very terms of the debate between Professors Thirlway and d’Aspremont for several reasons. First, there is a considerable ambiguity in both Japan’s argument and the Court’s position as to the legal effects yielded by the IWC resolutions. Hence, it is inevitable to have a variation of interpretations. Second, I believe that the determination of the implications of the judgment should not be made dependent on an “objectivised” subjective intention of the Parties or the Court — a task which is no work for legal scholars anyway.

Yet, my main source of puzzlement lies elsewhere. While the focus of Thirlway and d’Aspremont’s debate is on the Court’s position on Article 31 of the VCLT with regards to Japan’s non-assertion to the resolution, I submit that the most ground-breaking part of the judgment is that the Court brought back the legal effect of the resolutions from the backdoor, that is via the concept of ‘the duty to cooperate’. In this post, I would like to draw the attention of the readers to the unique characteristic of the duty to cooperate referred to in the Whaling case, and the possible necessity for a new conceptual framework. In particular, I argue, neither the logic of sources nor the logic of interpretation can sufficiently explain what the Court did with the duty of to cooperate. Read the rest of this entry…

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EJIL Debate. A Reply to Thirlway: I am not Thinking From the Bench

Published on January 16, 2018        Author: 
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Being the object of a public rebuttal in an highly visible on-line blog platform by a prominent author like Professor Thirlway probably constitutes the most generous reward one can receive for “burning the midnight oil“. This also provides a fate for one’s work that is much better than the oblivion and indifference to which most of scholarly outputs are condemned in today’s academic pathologically prolific scene. This is why I could not be more grateful to Professor Thirlway for his comments on my article. Our repeated public debates these last years (for another example, see here) remind me that we share many areas of interest (sources, international dispute settlement, responsibility, etc) but also confirm that our views are simply — and thankfully — irreconcilable. In this short reaction, I want to respectfully show that our views diverge on the structure of legal argumentation related to sources and interpretation (1) as well as on the purpose of international legal scholarship (2).

Saving the Court through opposability

The reading of the judgment of the International Court of Justice (hereafter ICJ or the Court) in the Whaling in the Antarctic case which I have articulated in the European Journal of International Law and with which Professor Thirlway takes issue can be summarized as follows: the Court blurred the lines between the doctrine of sources and the doctrine of interpretation (and the modes of legal argumentation associated with each of them) by calibrating the interpretive value of IWC resolutions for the sake of interpreting the notion of ‘scientific approach’ in Article VIII of the Whaling Convention on the basis of Japan’s assent to those resolutions. Read the rest of this entry…

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EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part II)

Published on January 16, 2018        Author: 
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Part II of a two-part post in the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

 

What did Japan say – and what did it not say? [Cont.]

[…]

What then does this single reference given tell us? What was Japan’s argument?  The text preceding the footnote states that in its Counter-Memorial Japan argues that resolutions of the kind under consideration ‘are not binding, and, therefore, irrelevant for the interpretation of Article VIII’ (d’Aspremont, p.1016). The Chapter of the Counter-Memorial quoted is however more limited: it is addressed to refutation of Australia’s argument that the resolutions rank as ‘subsequent agreement’ or ‘subsequent practice of the parties’ for purposes of Article 12 of the Vienna Convention on the Law of Treaties (an argument which was, as already noted, to be rejected by the Court). Japan’s argument on the point is in no way novel; and the question of Japan’s consent is not central, and not stressed. It is merely present in the reference to the need, under the terms of Article VI of the Whaling Convention, for consensus, if a resolution is to be anything more than a non-binding recommendation. It is hard to see any invocation of the doctrine of sources here.

Nor is there anything recognisable as reliance on sources in the oral argument of Japan, or even any emphasis on the lack of Japan’s lack of assent. In that argument the IWC resolutions were first dismissed (rather casually), not on the basis of lack of assent, but on the grounds that they were obsolete or superseded (see Boyle in CR 2013/15, pp. 54-55). Emphasis was laid on the freedom of a State to disregard resolutions of international bodies that merely recommend (see Pellet in CR 2013/16, pp.53-54, citing Judge Lauterpacht in Voting Procedure [1955] ICJ Rep 114-115), but with no reference to the lack of Japan’s consent as the reason for purely recommendatory status. Read the rest of this entry…

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