scholarly journals TEMPORARY REFUGE FROM WAR: CUSTOMARY INTERNATIONAL LAW AND THE SYRIAN CONFLICT

2017 ◽  
Vol 66 (3) ◽  
pp. 723-745
Author(s):  
Hélène Lambert
Keyword(s):  
International Law ◽  
Large Scale ◽  
Shared Responsibility ◽  
Individual Member ◽  
Customary International Law ◽  
Temporary Protection ◽  
Large Numbers ◽  
Durable Solutions ◽  
Syrian Conflict ◽  
The Eu

AbstractThe rule of temporary refuge forms the cornerstone of the response of States to large-scale influx of refugees. In the context of civilians fleeing armed conflict, this legal rule imposes a positive obligation onallStates to admit and not to return anyone to a situation where there is a risk to life, and to provide basic rights commensurate with human dignity. Also implicit in the rule is the expectation of shared responsibility for large numbers of refugees and of international cooperation towards finding durable solutions. This article examines the customary international law of temporary refuge (also known as temporary protection) in relation to the Syrian conflict. It discusses implementation of the rule in the practice of three countries neighbouring Syria, and in the EU. It finds that the practice of Turkey, Lebanon and Jordan has been consistent with the rule of temporary refuge. However, the EU has decided not to use the Temporary Protection Directive; instead individual Member States have relied on the Refugee Convention and EU law, combined with various other measures not pertinent to temporary protection. It is concluded that shared responsibility is the linchpin of temporary refuge. Absent this keystone, the rule of temporary refuge is likely to continue to be implemented primarily in a regional context by those countries nearest to the country affected by the conflict, as in the case of Syria.

Responsibility of a Member state of an International Organization: Where Will It End? Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations

2010 ◽  
Vol 7 (1) ◽  
pp. 49-61 ◽  
Author(s):  
Esa Paasivirta
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Individual Member ◽  
Individual Member State ◽  
General Rules ◽  
The Right ◽  
International Law Commission ◽  
The Eu

AbstractThe paper addresses the issue of possible responsibility of a member state for acts of an international organization of which it is a member. This particular issue forms part of the on-going work of the International Law Commission of establishing rules for the responsibility of international organizations. The particular challenge is posed by possible “responsibility gaps”, i.e. situations where a state might avoid compliance with its own obligations by prompting the organization of which it is a member to act instead. The paper compares the ILC approach, approaching the issue by way of trying to establish general rules of responsibility (“secondary rules”) and the practice of the EU, which has addressed the issue by tailor-made solutions in the context of specific treaties (“primary rules”). The latter approach is more flexible as it allows individual solutions pertinent to particular circumstances and treaty regimes so as to ensure that either the organization itself or its member state is responsible, depending whichever is genuinely responsible. The paper concludes that the ILC work is progressing in the right direction as it narrows down the possibilities where a member state can be held responsible to cover only situations bordering abuse, rather than more open-ended standards for individual member state responsibility, which can open the door for unpredictable results.

When in Europe: Customary International Law and EU Competence in the Sphere of External Action

2012 ◽  
Vol 13 (11) ◽  
pp. 1177-1202 ◽  
Author(s):  
Theodore Konstadinides
Keyword(s):  
European Union ◽  
International Law ◽  
United States Supreme Court ◽  
External Action ◽  
The United States ◽  
European Union Law ◽  
Customary International Law ◽  
Eu Member States ◽  
Delegation Of Powers ◽  
The Eu

European Union law must be interpreted and its scope delimited, to the extent possible, consistent with the relevant rules of international law. Article 3(5) of the Treaty on European Union (TEU) provides that “the EU shall uphold and promote … the strict observance and the development of international law.” A similar legal commitment can be found in the constitutions of most EU Member States, which in some cases is about delegation of powers, whilst in others it concerns the achievement of global objectives. Article 3(5) of the TEU is also reminiscent of the judicial canon laid down by the United States Supreme Court in Charming Betsy regarding the affirmation of international norms by the Congress. The Charming Betsy doctrine of statutory construction requires national legislation (an American statute) to be construed so as not to raise conflict with international law where possible.

‘Soft’ Coercive Diplomacy versus Informal Resistance: Attempts at Deporting ‘Illegal Vietnamese’ from Reunifying Germany, 1990-1995

2014 ◽  
Vol 9 (3) ◽  
pp. 221-252
Author(s):  
Matthias Maass
Keyword(s):  
International Law ◽  
Large Scale ◽  
German Reunification ◽  
The European Union ◽  
Economic Costs ◽  
Coercive Diplomacy ◽  
Customary International Law ◽  
Three Stages ◽  
Legal Arguments ◽  
Full Cooperation

During the period of Germany’s reunification in the early 1990s, disagreement between Germany and Vietnam over the return of Vietnamese individuals to Vietnam escalated into a diplomatic dispute that also spilled over into Vietnam’s negotiations with the European Union over a major eu–Vietnam treaty. In mid-1995, however, the German and Vietnamese governments finally agreed on a repatriation arrangement that allowed Germany to begin deporting about 40,000 Vietnamese who were living in Germany illegally. This article explores the episode in the wider context of diplomatic dispute resolution. While Germany was demanding full cooperation from Vietnam on the issue of returning Vietnamese nationals, the Vietnamese government initially resisted large-scale repatriation for economic and social reasons. Hanoi attempted to frame the discussion within bilateral negotiations, economic costs and human rights, whereas Bonn argued from the perspective of customary international law and applied increasingly coercive diplomacy. German authorities escalated the disagreement and made economic threats with the aim of changing Hanoi’s behaviour. In order to frame this approach analytically, this article uses a modified form of coercive diplomacy. The analysis proceeds in three stages: first, the article analyses the origins of the dispute, which had its roots in German reunification; second, it evaluates the legal arguments advanced by each side; and third, it investigates Germany’s ‘soft’ coercive diplomacy and Vietnam’s response. The article concludes with an evaluation of Germany’s approach, benchmarking 1995’s diplomatic outcome against results on the ground, namely the number of returnees to Vietnam.

scholarly journals The definitive VAT system and its impact on tax collection

2021 ◽  
Vol 10 (2) ◽  
pp. 146-166
Author(s):  
Hana Zídková ◽  
Kristýna Balíková
Keyword(s):  
Large Scale ◽  
Positive Impact ◽  
Value Added ◽  
Individual Member ◽  
Tax Collection ◽  
Member States ◽  
Administrative Costs ◽  
Advantages And Disadvantages ◽  
Cross Border ◽  
The Eu

Value Added Tax (VAT) is a significant source of fiscal revenues in the EU. However, the VAT treatment of cross-border supplies enables large-scale tax frauds, such as the Missing Trader Intra-Community (MTIC), which takes each year billions of euros from Member States' public budgets. In 2016 a definitive VAT system was proposed by the European Commission to respond to the shortcomings of the current temporary system. This new system should reduce the possibilities of MTIC fraud for intra-community transactions through the collection of VAT by the supplier in the same way as for domestic transactions. The tax collection by the supplier would impact the administrative costs of the financial authorities. This paper contributes to the discussion about the advantages and disadvantages of the newly suggested system. The analysis focuses on the study of the change in administrative costs and VAT revenues for individual Member States and across the EU. The results are that after implementing the definitive VAT system, total administrative costs of the Member States would increase at least by EUR 107 million, whereas total VAT revenues would rise by EUR 40 billion. This indicates the overall positive impact of the definitive VAT system for the EU. However, individual Member States would not benefit equally. The net exporters, whose intra-community supplies exceed the intra-community acquisitions, would spend more than others for the collection of VAT in connection with the international trade of goods.

scholarly journals Secondary Sanctions: A Weapon out of Control? The International Legality of, and European Responses to, US Secondary Sanctions

2020 ◽  
Author(s):  
Tom Ruys ◽  
Cedric Ryngaert
Keyword(s):  
Foreign Policy ◽  
Adverse Effects ◽  
International Law ◽  
Global Economy ◽  
Economic Sanctions ◽  
Foreign Firms ◽  
Policy Agenda ◽  
Customary International Law ◽  
The Us ◽  
The Eu

Abstract The US is increasingly weaponizing economic sanctions to push through its foreign policy agenda. Making use of the centrality of the US in the global economy, it has imposed ‘secondary sanctions’ on foreign firms, which are forced to choose between trading with US sanctions targets or forfeiting access to the lucrative US market. In addition, the US has penalized foreign firms for breaching US sanctions legislation. In this contribution, it is argued that the international lawfulness of at least some secondary sanctions is doubtful in light of the customary international law of jurisdiction, as well as conventional international law (eg, WTO law). The lawfulness of these sanctions could be contested before various domestic and international judicial mechanisms, although each mechanism comes with its own limitations. To counter the adverse effects of secondary sanctions, third states and the EU can also make use of, and have already made use of, various non-judicial mechanisms, such as blocking statutes, special purpose vehicles to circumvent the reach of sanctions, or even countermeasures. The effectiveness of such mechanisms is, however, uncertain.

scholarly journals CJEU Achmea Judgment and What Comes Next. Some Reflections on the Potential Implications of the CJEU Judgment (C-284/16)

2020 ◽  
Vol 8 (1) ◽  
pp. 123-138
Author(s):  
Przemysław Domagała
Keyword(s):  
Member State ◽  
International Law ◽  
Judicial System ◽  
Eu Law ◽  
Member States ◽  
Customary International Law ◽  
Practical Solution ◽  
Investment Agreements ◽  
The Eu

In the judgment of 6.03.2018 (Achmea case, C-284/16), CJEU ruled that treaty clauses that allow investor from one of the Member States to bring proceedings against another Member State before an arbitraltribunal outside the EU judicial system are irreconcilable with Articles 267 and 344 TFEU when such tribunal may be called on to interpret or apply EU law. This principle is applicable to EU trade or investment agreements (FTAs and IIAs), since they are part of EU law, and to BITs, FTAs and IIAs, since they contain explicit or implicit referrals to municipal (EU) law. In intra-EU relations, such a conflict of norms must be solved according to customary international law codified in the VCLT. According to this law, TFEU would prevail as lex superior and, in the case of Poland and many other Member States, as lex posterior. In intra-EU relations, TFEU prevails ex proprio vigore, i.e. without the need to terminate intra-EU BITs. However, such termination is highly desirable, not only for reasons of clarity, but also because arbitral tribunals and extra-EU courts are not bounded by the ECJ’s ruling. In the case of agreements with non-Member States, the incompatibilities referred to in the Achmea judgment must be eliminated by renegotiation or formal termination (Article 307 (2) TFEU). In the case of the BITs, the latter seems to be the only practical solution.

scholarly journals PROVOCATIVE CLIMATE PROTECTION: EU ‘EXTRATERRITORIAL’ REGULATION OF MARITIME EMISSIONS

2017 ◽  
Vol 66 (2) ◽  
pp. 295-333 ◽  
Author(s):  
Natalie L. Dobson ◽  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Carbon Dioxide Emissions ◽  
Law Of The Sea ◽  
International Maritime Organisation ◽  
Customary International Law ◽  
Slow Pace ◽  
Trade Law ◽  
Legal Implications ◽  
Reporting And Verification ◽  
The Eu

AbstractIn 2015, frustrated by the slow pace of negotiations in the International Maritime Organisation, the EU issued Regulation 2015/757 on the monitoring, reporting, and verification of carbon dioxide emissions from maritime transport. Echoing the controversial Aviation Directive, the Regulation is intended to support a unilateral market-based measure, and includes emissions from outside EU territory. This raises the question whether, according to international law, the EU has jurisdiction to regulate such ‘extraterritorial’ circumstances. In exploring the appropriate jurisdictional bases, we argue that neither the Law of the Sea Convention, nor world trade law definitively decide this issue. We therefore devote more detailed attention to the customary international law of State jurisdiction supplementing these regimes. We seek to build on the existing analysis by examining climate change as a ‘common concern of mankind’. We argue that this emerging concept has distinct legal implications that can and should be accommodated within the interest-balancing exercise underlying the jurisdictional analysis.

Performance Requirements: Is there a Real Reason for their Prohibition?

2019 ◽  
Vol 4 (1) ◽  
pp. 178-202
Author(s):  
Olga Magomedova
Keyword(s):  
International Economic ◽  
International Law ◽  
Theoretical Foundation ◽  
Legal Framework ◽  
Customary International Law ◽  
Performance Requirements ◽  
Broad Term ◽  
Definition Of ◽  
Bilateral Treaties ◽  
The Eu

Recent international economic agreements between the EU and other non-EU states have included prohibitions on performance requirements (PRs). Although the provisions prohibiting such requirements typically specify the types of prohibited practices, the essence of PRs, and the reasons for their prohibition remain unclear. The recent concept of PRs has crept into the international legal framework seemingly without a firm theoretical foundation and without any roots in customary international law. It had initially been used in bilateral treaties as the broad term for designating certain policy tools which States were prepared to relinquish so as to promote a better investment regime. Noting the lack of a generally recognised definition of PRs, this article provides an overview of scholars’ opinions and adjudicators’ reasoning on this subject, highlighting certain significant differences in approach. Guided by various examples from arbitral practice and national legislation of selected countries, this article seeks to distil the inherent features of PRs and to rationalise the internationally-prevailing views on this subject. In summary, the article gives an assessment of the prohibition of PRs and considers the reasons for which States may seek to eliminate these types of measures.

The Status of International Law in the EU

2021 ◽  
pp. 421-505
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
International Law ◽  
International Agreements ◽  
Legal Order ◽  
European Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
European Court ◽  
Un Security Council ◽  
The Status ◽  
The Eu

This chapter deals with the status of international law in the EU legal order under the Lisbon Treaty. It presents in great detail the most important cases of the European Court of Justice (ECJ) on the incorporation of international agreements and their rank in the domestic legal order. The origins and current practice of the doctrine of direct effect for specific provisions in an international agreement are explained. Moreover, the chapter contains an assessment of the famous ECJ Kadi-jurisprudence on the significance of human rights in the implementation of UN Security Council Resolutions on counter-terrorism. Finally, it also shows with concrete examples how the Court of Justice developed the status of customary international law in the EU.

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