Regulating non-international armed conflicts: a review essay of 'The Law of Non-International Armed Conflict' by Sandesh Sivakumaran

This review essay engages with Sandesh Sivakumaran’s book The Law of Non-International Armed Conflict, exploring its significance both in international humanitarian law and international law more generally.

Consent and the use of force: an examination of ‘intervention by invitation’ as a basis for US drone strikes in Pakistan, Somalia and Yemen

Drone strikes are becoming a key feature of the United States’ global military response to nonstate actors, and it has been widely adduced that these strikes have been carried out with the consent of the host states in which such non-state actors reside. This article examines the degree to which assertions of consent (or ‘intervention by invitation’), provided as a justification for drone strikes by the United States in Pakistan, Yemen and Somalia, can be said to accord with international law. First the article provides a broad sketch of the presence of consent in international law. It then analyses in detail the individual elements of consent as provided by Article 20 of the International Law Commission Draft Articles of State Responsibility. These require that consent should be ‘valid’, given by the legitimate government and expressed by an official empowered to do so. These elements will be dealt with individually, and each in turn will be applied to the cases of Pakistan, Yemen and Somalia. Finally, the article will examine the breadth of the exculpatory power of consent, and the extent to which it can preclude the wrongfulness of acts carried out in contravention of international law other than the prohibition of the use of force under Article 2(4) of the Charter of the United Nations.

Transnational Law for Transnational Communities The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities

Open Source Communities and content-oriented projects (Creative Commons etc.) have reached a new level of economic and cultural significance in some areas of the Internet ecosystem. These communities have developed their own set of legal rules covering licensing issues, intellectual property management, project governance rules etc. Typical Open Source licenses and project rules are written without any reference to national law. This paper considers the question whether these license contracts and other legal rules are to be qualified as a lex mercatoria (or lex informatica) of these communities.

International Investment Law in Latin America: problems and prospects

With the bilingual volume International Investment Law in Latin America: Problems and Prospects, Attila Tanzi, Alessandra Asteriti, Rodrigo Polanco Lazo and Paolo Turrini provide a regional perspective on one of the liveliest branches of international law by situating it in one of the most dynamic areas of the world. Latin America has always had an ambivalent relationship with international investment law and, more recently, it has been the home of harsh and resolute criticisms, questioning the ultimate legitimacy of the regime. By bringing together distinguished scholars of this legal field, the volume analyses ongoing trends and draws lessons from the Continent’s past experiences while identifying possible solutions to the important challenges it faces.

The autonomy of the EU legal order and the law-making activities of international organizations. Some examples regarding the Council most recent practice. Research Papers in Law 03/2012

[Introduction.] It is generally believed that while the principle of the autonomy of the EU legal order, in the sense of constitutional and institutional autonomy that is to say what concerns the autonomous decision-making of the EU, has been clearly strengthened by the most recent jurisprudence of the Court of Justice (eg. Moxplant3, Intertanko or the Kadi/Al Baraakat judgements or the Opinion 1/2009 of the CJEU etc.) as well as, in my opinion, in many aspects by the Treaty of Lisbon, it is still valid to add that the principle of a favourable approach, stemming from the Court jurisprudence, for the enhanced openness of the EU legal order to international law has remained equally important for the EU4. On the other hand, it should be also seen that in a globalized world, and following the increased role of the EU as an international actor, its indispensable and crucial role concerning the creation of world (legal) order in many policy fields ( for example let's think about the G20 issues, the global economic and financial crisis, the role of the EU in promoting and protecting human rights worldwide, the implementation of the multilateral or regional conventional law, developed in the framework the UN (e.g. in the field of agriculture or environment etc) or what concerns the Kyoto process on climate change or the conservation of marine biological resources at international level etc), it seems reasonable and justified to submit that the influence, for example, of the law-making activities of the main stakeholder international organizations in the mentioned policy-areas on the EU (especially on the development of its constantly evolving legal order) or vice-versa the influence of the EU law-making practice on these international organizations is significant, in many aspects mutually interdependent and more and more remarkable. This tendency of the 21st century doesn't mean, however, in my view, that the notion of the autonomy of the EU legal order would have been weakened by this increasing interaction between international law and EU law over the passed years. This contribution is going to demonstrate and prove these departuring points by giving some concrete examples from the most recent practice of the Council (all occuring either in the second half of 2009 or after the entry into force of the Lisbon Treaty), and which relate to two very important policy areas in the EU, namely the protection of human rights and the Common Fishery Policy.

The International Conference Education and Creativity for a Knowledge–based Society – LAW. Vienna, Osterreichish Rumanischer Akademischer Verein, 2012. VIth edition

No abstract.

Survey on Rules on Loss of Nationality in International Treaties and Case Law. CEPS Paper in Liberty and Security in Europe No. 57, 30 August 2013

This paper offers a picture of the obligations existing under international and European law in respect of the loss of nationality. It describes international instruments including obligations in this field with direct relevancy for the loss of nationality of Member States of the European Union, but also obligations regarding loss of nationality in regional non-European treaties. Attention is given to two important judicial decisions of the European Court of Justice (Janko Rottmann) and the European Court of Human Rights (Genovese v Malta) regarding nationality. Special attention is devoted to Article 15 of the Universal Declaration of Human Rights, which forbids the arbitrary deprivation of nationality. A survey is provided of possible sub-principles that can be derived from this rule. Finally, some observations are made on the burden of proof in cases of loss of nationality.

With or without you...judging politically in the field of Area of Freedom, Security and Justice? Research Papers in Law, 3/2007

From the Introduction. The study of the European Court of Justice’s (ECJ) case law of the regarding the Area of Freedom Security and Justice (AFSJ) is fascinating in many ways.1 First, almost the totality of the relevant case law is extremely recent, thereby marking the first ‘foundational’ steps in this field of law. This is the result of the fact that the AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999.2 Second, as the AFSJ is a new field of EU competence, it sets afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its member states, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) measure of the protection given to fundamental rights. The above questions beg for answers which should take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.3 Third, and as a consequence of the above, the vast majority of the ECJ’s judgments relating to the AFSJ are a) delivered by the Full Court or, at least, the Grand Chamber, b) with the intervention of great many member states and c) often obscure in content. This is due to the fact that the Court is called upon to set the foundational rules in a new field of EU law, often trying to accommodate divergent considerations, not all of which are strictly legal.4 Fourth, the case law of the Court relating to the AFSJ, touches upon a vast variety of topics which are not necessarily related to one another. This is why it is essential to limit the scope of this study. The content of, and steering for, the AFSJ were given by the Tampere European Council, in October 1999. According to the Tampere Conclusions, the AFSJ should consist of four key elements: a) a common immigration and asylum policy, b) judicial cooperation in both civil and penal matters, c) action against criminality and d) external action of the EU in all the above fields. Moreover, the AFSJ is to a large extent based on the Schengen acquis. The latter has been ‘communautarised’5 by the Treaty of Amsterdam and further ‘ventilated’ between the first and third pillars by decisions 1999/435 and 1999/436.6 Judicial cooperation in civil matters, mainly by means of international conventions (such as the Rome Convention of 1981 on the law applicable to contractual obligations) and regulations (such as (EC) 44/20017 and (EC) 1348/20008) also form part of the AFSJ. However, the relevant case law of the ECJ will not be examined in the present contribution.9 Similarly, the judgments of the Court delivered in the course of Article 226 EC proceedings against member states, will be omitted.10 Even after setting aside the above case law and notwithstanding the fact that the AFSJ only dates as far back as May 1999, the judgments of the ECJ are numerous. A simple (if not simplistic) categorisation may be between, on the one hand, judgments which concern the institutional setting of the AFSJ (para. 2) and, on the other, judgments which are related to some substantive AFSJ policy (para. 3).

The importance of International Developments in the case-law of the European Court of Justice: Kadi and the autonomy of the EC legal order. Research Papers in Law, 1/2009

From the Introduction. In the USA, the debate is still ongoing as to whether and to what extent the Supreme Court could or should refer to foreign precedent, in particular in relation to constitutional matters such as the death penalty.1 In the EU, in particular the recent Kadi case of 20082 has triggered much controversy,3 thereby highlighting the opposite angle to a similar discussion. The focus of attention in Europe is namely to what extent the European Court of Justice (hereafter “ECJ”) could lawfully and rightfully refuse to plainly ‘surrender’ or to subordinate the EC legal system to UN law and obligations when dealing with human rights issues. This question becomes all the more pertinent in view of the fact that in the past the ECJ has been rather receptive and constructive in forging interconnectivity between the EC legal order and international law developments. A bench mark in that respect was undoubtedly the Racke case of 1998,4 where the ECJ spelled out the necessity for the EC to respect international law with direct reference to a ruling of the International Court of Justice. This judgment which was rendered 10 years earlier than Kadi equally concerned EC/EU economic sanctions taken in implementation of UN Security Council Resolutions. A major question is therefore whether it is at all possible, and if so to determine how, to reconcile those apparently conflicting judgments.

Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law. CEPS Liberty and Security in Europe No. 61, 6 November 2013

In the wake of the disclosures surrounding PRISM and other US surveillance programmes, this paper assesses the large-scale surveillance practices by a selection of EU member states: the UK, Sweden, France, Germany and the Netherlands. Given the large-scale nature of these practices, which represent a reconfiguration of traditional intelligence gathering, the paper contends that an analysis of European surveillance programmes cannot be reduced to a question of the balance between data protection versus national security, but has to be framed in terms of collective freedoms and democracy. It finds that four of the five EU member states selected for in-depth examination are engaging in some form of large-scale interception and surveillance of communication data, and identifies parallels and discrepancies between these programmes and the NSA-run operations. The paper argues that these programmes do not stand outside the realm of EU intervention but can be analysed from an EU law perspective via i) an understanding of national security in a democratic rule of law framework where fundamental human rights and judicial oversight constitute key norms; ii) the risks posed to the internal security of the Union as a whole as well as the privacy of EU citizens as data owners and iii) the potential spillover into the activities and responsibilities of EU agencies. The paper then presents a set of policy recommendations to the European Parliament.

The Legal Status and Influence of Decisions of International Organizations and other Bodies in the European Union. College of Europe Research Paper in Law 01/2014

Introduction. The European Union’s external action is not only defined by its influence on international developments, but also by its ability and the need to respond to those developments. While traditionally many have stressed the EU’s ‘autonomy’, over the years its ‘dependence’ on global developments has become more clear.2 International law has continued to play a key role in, not only in the EU’s external relations, but also in the Union’s own legal order.3 The purpose of this paper is not to assess the role or performance of the EU in international institutions.4 Rather it purports to reverse the picture and focus on a somewhat under-researched topic: the legal status of decisions of international organizations in the EU’s legal order.5 While parts of the status of these decisions relate to the status of international agreements and international customary law, it can be argued that decisions of international organizations and other international bodies form a distinct category. In fact, it has been observed that “this phenomenon has added a new layer of complexity to the already complex law of external relations of the European Union”.6 Emerging questions relate to the possible difference between decisions of international organizations of which the EU is a member (such as the FAO) and decisions of organizations where it is not (irrespective of existing competences in that area – such as in the ILO). Questions also relate to the hierarchical status of these decisions in the EU’s legal order and to the possibility of them being invoked in direct or indirect actions before the Court of Justice. This contribution takes a broad perspective on decisions of international organizations by including decisions taken in other international institutions which do not necessarily comply with the standard definition of international organizations,7 be it bodies set-up by multilateral conventions or informal (transnational / regulatory) bodies. Some of these bodies are relatively close to the EU (such as the Councils established by Association Agreements – see further Section 5 below); others operate at a certain distance. Limiting the analysis to formal international organizations will not do justice to the manifold relationships between the European Union and various international bodies and to the effects of the norms produced by these bodies. The term ‘international decisions’ is therefore used to refer to any normative output of international institutional arrangements.

A challenge for liberal democracy: How to understand the Russian intervention in Ukraine. Bertelsmann Policy Brief, 16.10.2014

The Russian intervention in Ukraine has provoked a deep crisis which will likely last for years, with profound consequences not only for Ukraine, Russia and Eastern Europe, but also for the internal situation in the European Union. The current Russian aggression is frequently seen as a profound violation of international law, breaking the rules that are fundamental for relations in Europe. It is perceived as perhaps a step towards rebuilding imperial Russia or, at the very least, an attempt to keep Ukraine within Russia’s sphere of influence. However, one very important aspect is virtually neglected, namely, that Russia’s Ukraine venture may have a significant impact on the future of liberal democracy in Europe and beyond.

International trade mark law and practice,

The laws of all countries have been analyzed and arranged under a series of headings; full texts of the various international conventions on the subject of trade-marks and a complete collection of the trade-mark classifications in force in the various countries are also included. cf. Pref.