The "European model" of international law and its significance for Asia. Some critical reflections. EU Centre in Singapore Working Paper No. 7, June 2012

There is a certain arrogance in the affirmation that a “European model” of regional integration and of compliance with international law should be adopted anywhere in the world, and in Asia in particular. This article argues on the contrary that Asia and Europe are in fundamentally different situations vis-à-vis international law. Based on an analysis of recent events and latest legal developments in Europe, it puts the “European model” of regional integration and the European selective compliance with international law in perspective with regard to the Asian context. Without denying that “civilizations” should learn from one another and that the European experience may be relevant to some extent in Asia, this article concludes that the tools developed in Europe should be used differently in Asia.

Syria and the red lines of international law. CEPS Commentary, 4 September 2013

As the US and its allies France and Turkey dither over whether or not to punish Assad for having used sarin gas to kill his own people, the crucial question is: What response might the outside world legally take without the authority of the UN Security Council, which remains blocked by two veto-wielding members, Russia and China? Sadly, international law provides no clear-cut answers to this dilemma. To respond to what US Secretary of State John Kerry has rightly called a “moral obscenity”, this commentary explores ways in which formal interpretations of international law might give way to a more pragmatic approach to punish the Assad regime for its use of chemical weapons.

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.

The Europeanisation of Criminal Law and the Criminal Law Dimension of European Integration. Research Papers in Law, 3/2005

From the Introduction. In the academic year 1991-1992, Utrecht University, on my initiative, started to offer courses in European criminal law. This initiative came at a symbolic moment, just prior to the entry into force of the EU Treaty of Maastricht1 and the outlining of European policy in the areas of Justice and Home Affairs (JHA). The Director of the Legal Department, Paul DEMARET, was aware of the significance of this development and I have been given the opportunity to teach this subject at the College of Europe since 1995. Since then, JHA has evolved into one of the main areas of EU legislation. Now we are again on the threshold of an important historical feat. In June 2003, the European Convention reached agreement concerning a draft Treaty establishing a Constitution for Europe.2 The use of the term “Constitution” for the future EU Treaty is not simply cosmetic. The realisation has dawned that EU integration must be embedded in a treaty document which also regulates the rights and duties of citizens, not just with respect to European citizenship, but also with respect to, for example, Justice. Where JHA is concerned, this result acknowledges that the harmonisation of criminal law and criminal procedure and transnational cooperation cannot preclude the harmonisation of principles of due law and fair trial. Despite the substantial Europeanisation of criminal law, many criminal lawyers are defending the achievements and typicalities of their national criminal law like never before. EU initiatives are assessed from the perspective of the national agenda and national achievements. We are still too far removed from a European criminal law policy that is both European and enjoys national support. The core issue is therefore not how to keep our criminal (procedural) law national and free from European influences, but rather how to ensure democratic decision making, the quality of the constitutional state and the guarantees of criminal law in a national administrative model which has to operate increasingly interactively within a European and international context. In this contribution, the contours of the Europeanisation of criminal law are outlined and analysed. First, attention will be paid to the EC and, second, to the JHA. Following this, an evaluation and a look ahead at the current IGC are indicated.

The Failure of Integration: The CIS and other international organisations in the post-Soviet era, 1991-2006. OSW Study 26/2007

Institutional integration processes in the post-Soviet area have ended in failure. It proved impossible to transform the Commonwealth of Independent States into an instrument of real co-operation, even though Russia, which was the most interested in integrating the post-Soviet space, made repeated efforts to this end. The CIS never managed to accomplish its declared objectives and, from this point of view, it does not exist as an integration organisation and de facto never did.

West African Migrants in Spain: Human Factors and Emerging International Policy. ACES Working Paper No. 6, Fall 2008

This paper concerns itself with the recent phenomenon of West Africans leaving the African continent and seeking work in Spain. By the year 2003, a barely noticeable blip on the screen of the age-old phenomenon that is migration became a conspicuous trend. Depending on one's perspective this trend is either a natural flow of people from one region to another, or it is an alarming turn of events that needs immediate global attention. However, when it involves significant loss of life - as does the sea journey of the poorest aspirants - surely all who ponder the migrant question would agree that this qualifies as a crisis. The next question becomes, then, is it best to focus on minimizing the risks or to focus on deterring the would-be migrants at the onset of their journey? This question and its possible answer are further nuanced by whether those determined to leave receive incentives for choosing to stay at home or whether government officials and others who respond to the crisis in both sending and receiving countries practice a forceful type of deterrent that merely halts the process of migration but does not tackle the issue of why the person chose to leave in the first place.

GATS and the Social Regulation of Services. IES WORKING PAPER 3/2010

Many service transactions are highly complex, and their quality is difficult to ascertain for consumers. In order to have properly functioning service markets, the services thus often require regulation. However, with the advent of the WTO, international trade in services has become increasingly rule-bound. GATS has considerable, intricate effects on social regulation due to the characteristics of services. The allocation of regulatory jurisdiction between home and host country, for example, is rendered difficult by the process-based nature of a lot of services. The WTO US – Gambling dispute settlement report is the first to address GATS disciplines on social regulation in a detailed manner. This working paper submits that the US - Gambling report has increased interference with domestic social regulation and created regulatory uncertainty for WTO members. However, it is also argued that the real impact of the GATS on social regulation can only be understood by looking beyond the text of the GATS. GATS disciplines may become amplified through their interaction with domestic and other international law. The GATS also contains some “political” counterbalancing mechanisms that allow members to renegotiate their commitments. It is argued that these political mechanisms strengthen subsidiarity in the GATS, and make WTO dispute settlement bodies accountable to WTO members.