Current Challenges regarding the International Refugee Law, with focus on EU Policies and EU Co-operation with UNHCR. CEPS Paper on Liberty and Security in Europe No. 59, September 2013

From an examination of the instruments of the Common European Asylum System (CEAS) and related policy measures regarding border surveillance and migration management, two interrelated issues stand out as particularly sensitive: Access to asylum and responsibility for refugee protection. The prevailing view, supported by UNHCR and others, is that responsibility for the care of asylum seekers and the determination of their claims falls on the state within whose jurisdiction the claim is made. However, the possibility to shift that responsibility to another state through inter-state cooperation or unilateral mechanisms undertaken territorially as well as abroad has been a matter of great interest to EU Member States and institutions. Initiatives adopted so far challenge the prevailing view and have the potential to undermine compliance with international refugee and human rights law. This note reviews EU action in the field by reference to the relevant legal standards and best practices developed by UNHCR, focusing on the specific problems of climate refugees and access to international protection, evaluating the inconsistencies between the internal and external dimension of asylum policy. Some recommendations for the European Parliament are formulated at the end, including on action in relation to readmission agreements, Frontex engagement rules in maritime operations, Regional Protection Programmes, and resettlement.

EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

Federation without federalism. Relations between Moscow and the regions. OSW Study 49/2014

The regions of the Russian Federation are immensely diverse economically and geographically as well as when it comes to their national identity, civic awareness and political activity. We are in fact dealing with a ‘multi-speed Russia’: along with the post-industrial regions with their higher living standards and a need for pluralism in politics, there are poverty-stricken, inertial regions, dependent on subsidies from the centre. As a result of the policy of centralisation pursued by the Kremlin since 2000, the autonomy of the regions has been reduced fundamentally. This has affected the performance of the regional elites and made it difficult for the regions to use their natural advantages (such as resources or location) to their benefit. One of the effects of this policy has been the constantly decreasing number of the donor regions. The current model promotes the role of the region as a passive supplicant, for whom it is easier to seek support from the central government, offering loyalty in exchange, than to implement complex systemic reforms that would contribute to long-term development. Moscow’s control (political, economic and administrative) over the regions is currently so thorough that it contradicts the formally existing federal form of government in Russia.

More Union in European Defence. CEPS Task Force Report, 26 February 2015

Years of uncoordinated cuts in defence spending have eroded the EU’s role as a security actor in what is now a multipolar world. This CEPS Task Force report aims to provide member states and the EU institutions with the narrative to strengthen defence cooperation in the EU, in the face of numerous emergencies in the EU’s strategic neighbourhood and ever-present security threats. The report is a record of the deliberations over several months between high-level experts in the field of European security and defence, who conclude that the Treaty of Lisbon demands and permits a great deal more in terms of our common security and defence activities. And that member states could achieve much more value for money than the €190 billion that they spend to keep up 28 national armies, comprising roughly 1.5 million service personnel. This report suggests policy actions to further the EU’s strategic, institutional, capabilities, and resources cooperation in the field of defence. Ultimately, in the view of the Task Force experts, further integration should amount to a European Defence Union.

Abkhazia’s ‘creeping’ incorporation. The end of the experiment of a separatist democracy. OSW Commentary 164, 2015-03-12

On 5 March 2015 a Russian-Abkhazian treaty on alliance and strategic partnership came into effect; it had been signed on 24 November 2014. In fact, the treaty provides a “roadmap” for the incorporation of Abkhazia into the Russian area of defence and economic and social affairs: as soon as the transition periods defined in the treaty expire, Russian standards and legal regulations will be rolled out in these areas. Despite maintaining the formal status of the Abkhazian government institutions and attributes of statehood (which, however, is a fact of minor importance, as Abkhazia is not internationally recognised as a state), the treaty’s entry into force will de facto bring the current model of functioning of this para-state to an end.

An Industrious European Council on Defence? Egmont Security Policy Brief No. 53, February 2014

The December 2013 Council meeting set in motion a number of important “roadmaps” for defence-industrial policy in Europe. Now the member states, the European Defence Agency and European Commission need to be aware of the potential roadblocks ahead.

Pro-American non-alignment. Sweden and Finland develop closer military co-operation with the United States. OSW COMMENTARY NUMBER 205/31.03.2016

Russia’s increasingly aggressive policy and its enhanced military activity in the Nordic-Baltic region has led to revaluations in Sweden’s and Finland’s security and defence policies and a rethinking of the formats of their military co-operation. While remaining outside NATO, the two states have been developing closer bilateral defence co-operation and working more closely with the United States, while at the same time developing co-operation with NATO. Sweden and Finland perceive the United States as the guarantor of regional and European security. From their point of view, the United States is currently the country that has both the necessary military capabilities and the political will to react in the event of a conflict between Russia and NATO in the Nordic-Baltic region, in which both countries would inevitably become involved despite their non-aligned status. For Sweden and Finland, intensified co-operation with the United States offers an alternative to NATO membership, which is currently out of the question for domestic political reasons. Meanwhile, the US has also become increasingly aware of the strategic importance of the two states, which, for the purposes of contingency planning, are in fact an extension of NATO’s north-eastern flank.