scholarly journals Provisional Application of Treaties: The EU’s Contribution to the Development of International Law

2020 ◽  
Author(s):  
Merijn Chamon
Keyword(s):  
European Union ◽  
Member State ◽  
International Law ◽  
External Action ◽  
Federal Level ◽  
Provisional Application ◽  
International Law Commission ◽  
Law Commission ◽  
The Eu ◽  
Internal Division

Abstract Provisional application has become a quasi-automatic corollary to the signature of mixed bilateral European Union (EU) agreements. Resort to provisional application is thereby informed by a rationale hitherto unknown in international law: it allows federal polities where the federal level does not have exclusive treaty making powers to develop an effective external action that is not hindered by that polity’s complex internal division of competences. This article argues that the EU has also developed a rather consistent practice in relation to provisional application. The EU thereby distinguishes between its treaty partners whereby some of them simply agree that the EU unilaterally determines the scope of provisional application. Because of the reference to the EU’s internal division of competence, the internal law of the parties, something that is typically not relevant under international law, acquires legal significance. The EU’s practice is found to be largely in line with the Draft Guidelines on Provisional Application that are being elaborated by the International Law Commission, although clearly it is also more refined on some points. Lastly, the article identifies one pressing issue which requires clarification, and which is not properly addressed in the Draft Guidelines. That is the question on the fate of the provisional application by the EU of part of a mixed agreement where one individual EU member state has decided not to ratify that agreement.

Prior Exhaustion of Internal Remedies in Cases Involving the International Responsibility of the European Union

2013 ◽  
Vol 22 (1) ◽  
pp. 59-89
Author(s):  
Simone Vezzani
Keyword(s):  
European Union ◽  
International Law ◽  
Effective Means ◽  
The European Union ◽  
International Organisations ◽  
Diplomatic Protection ◽  
Legal Remedies ◽  
International Responsibility ◽  
International Law Commission ◽  
The Eu

As recognised by the International Law Commission in the 2011 Draft Articles on the Responsibility of International Organisations, the rule of the prior exhaustion of internal remedies also applies to cases where the international responsibility of international organisations is invoked, be it in the field of diplomatic protection or human rights. This essay focuses on the application of this rule to the European Union (EU). The author maintains that the legal remedies available to individuals alleging injury as a result of an internationally wrongful act of the EU include both direct remedies before EU courts and remedies before domestic tribunals. He then scrutinises whether each remedy is capable of providing individuals with accessible and effective means of redress.

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.

scholarly journals Konsekwencje brexitu w dziedzinie prawa prywatnego międzynarodowego

2020 ◽  
pp. 138-158
Author(s):  
Sylwia Majkowska-Szulc
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Member State ◽  
International Law ◽  
Private International Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Future ◽  
The Uk ◽  
The Eu

Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.

scholarly journals Provisional Application of Treaties and Other Topics: The Seventy-Second Session of The International Law Commission

2021 ◽  
Vol 115 (4) ◽  
pp. 671-687
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
Health Risks ◽  
Provisional Application ◽  
Current Program ◽  
International Law Commission ◽  
First Time ◽  
Law Commission

The International Law Commission (ILC) held its seventy-second session from April 26 to June 4 and from July 5 to August 6, 2021 in Geneva, under the chairmanship of Mahmoud Hmoud (Jordan). This session was originally scheduled for the summer of 2020, but had to be postponed due to the outbreak of the COVID-19 pandemic. The pandemic continued in 2021 to present health risks and travel difficulties for certain members; consequently, the Commission for the first time in its history held its session in a hybrid manner, with many members physically present in Geneva, while others participated online by means of Zoom. That approach required certain adjustments to the Commission's methods of work, but allowed the Commission to move forward in addressing the several topics on its current program of work.

WHERE THE LAW BECOMES IRRELEVANT: CONSULAR ASSISTANCE AND THE EUROPEAN UNION

2011 ◽  
Vol 60 (4) ◽  
pp. 965-995 ◽  
Author(s):  
Annemarieke Vermeer-Künzli
Keyword(s):  
European Union ◽  
Member State ◽  
International Law ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
The Law ◽  
The Eu

AbstractIn recent years, the European Union (‘eu’) has taken a number of initiatives with a view to co-ordinating consular assistance in third countries. Not only have EU citizens an entitlement to consular assistance by any EU Member State in the absence of a representation of their own, but EU Member States themselves are encouraged to co-operate by means of the Lead State Concept and other forms of co-operation. While this may seem relatively unproblematic from the perspective of the EU, it is very difficult to reconcile with general international law. The various EU agreements in this area have no application to third States: some do not have legally binding form and even those that do only apply to the parties to the treaties, ie EU Member States. This article will present the situation, analyse its complexities and offer some reflections on the global application and desirability of the regime created by the EU.

Constitutional and Legal Restrictions in the European Union Countries in the Context of the COVID 19 Pandemic

2020 ◽  
pp. 92-97
Author(s):  
A. V. Kuznetsov
Keyword(s):  
European Union ◽  
Human Rights ◽  
Comparative Analysis ◽  
International Law ◽  
The European Union ◽  
Eu Countries ◽  
European Union Countries ◽  
Legal Restrictions ◽  
Restrictive Measures ◽  
The Eu

The article examines the norms of international law and the legislation of the EU countries. The list of main provisions of constitutional and legal restrictions in the European Union countries is presented. The application of the norms is described Human rights conventions. The principle of implementing legal acts in the context of the COVID-19 pandemic is considered. A comparative analysis of legal restrictive measures in the States of the European Union is carried out.

The European Union and Diplomatic Law

2017 ◽  
Author(s):  
Graham Butler
Keyword(s):  
European Union ◽  
External Action ◽  
Legal Framework ◽  
Second World War ◽  
First Century ◽  
The European Union ◽  
Nation States ◽  
Supranational Institutions ◽  
Second World ◽  
The Eu

Not long after the establishment of supranational institutions in the aftermath of the Second World War, the early incarnations of the European Union (EU) began conducting diplomacy. Today, EU Delegations (EUDs) exist throughout the world, operating similar to full-scale diplomatic missions. The Treaty of Lisbon established the legal underpinnings for the European External Action Service (EEAS) as the diplomatic arm of the EU. Yet within the international legal framework, EUDs remain second-class to the missions of nation States. The EU thus has to use alternative legal means to form diplomatic missions. This chapter explores the legal framework of EU diplomatic relations, but also asks whether traditional missions to which the VCDR regime applies, can still be said to serve the needs of diplomacy in the twenty-first century, when States are no longer the ultimate holders of sovereignty, or the only actors in international relations.

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