Resolving Perceived Norm Conflict through Principles of Treaty Interpretation: The January 2019 EU Member States’ Declarations

2020 ◽  
Vol 5 (1) ◽  
pp. 167-195
Author(s):  
Samantha J. Rowe ◽  
Nelson Goh
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Legal Order ◽  
Vienna Convention ◽  
Member States ◽  
Eu Member States ◽  
Valid Consent ◽  
Energy Charter Treaty ◽  
Treaty Interpretation ◽  
The Eu

In January 2019, EU Member States issued three declarations concerning the “consequences of Achmea” which stated that all claims under intra- EU BIT S were contrary to the EU legal order, and that tribunals presiding over such claims have no jurisdiction as there is no valid consent to arbitrate. The declaration signed by a majority of EU Member States (“Majority Declaration”) extended this proposition to intra- EU claims under the Energy Charter Treaty. Following this, a number of EU Member States have sought to argue that the Majority Declaration is a subsequent agreement between the States Parties to intra- EU investment treaties—or evidence of a subsequent practice establishing their agreement—that the dispute resolution provisions in those treaties must be interpreted to exclude intra- EU disputes from their scope and thus from the jurisdiction of tribunals constituted thereunder, relying on Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties (“VCLT”). This paper considers: (i) the key cases in which the Majority Declaration has been invoked to contest jurisdiction in, or seek the termination of, intra- EU arbitration proceedings; (ii) the application of Article 31(3)(a) and (b) of the VCLT; and (iii) other fundamental tenets and rules of international law discussed in relation to those cases.

The Constitutional Price for International Unilateralism in the European Banking Union

2019 ◽  
Vol 38 ◽  
pp. 320-360
Author(s):  
Adrian Dumitrescu-Pasecinic
Keyword(s):  
International Law ◽  
Legal Order ◽  
Institutional Framework ◽  
Voluntary Action ◽  
Banking Union ◽  
Eu Law ◽  
Member States ◽  
Eu Member States ◽  
European Banking Union ◽  
The Eu

Abstract In order to enter the Banking Union, non-euro EU Member States must ‘step outside’ the EU legal order and the Union’s institutional framework, and resort to unilateral instruments of public international law. If the intergovernmental method has advanced the alternative project of integration based on voluntary policy, international unilateralism is seen as a similar integration technique based on the voluntary action of non-euro Member States, ie a tool for deeper integration that appears as a variation of intergovernmentalism. This article focuses on the constitutional deficiencies caused by the choice of unilateral instruments in the institutional set-up of a close cooperation arrangement in the Single Supervisory Mechanism. At first sight, leaving the EU legal order and entering the world of international law opens entirely new perspectives for the participating Member States. The possible attraction is escaping the constraining institutional framework of EU law. However, the international law route poses significant constitutional challenges vis-à-vis compatibility with the EU law.

scholarly journals INTERNATIONAL LAW ASPECTS OF GERMAN COPYRIGHT LAW (GCL)

2017 ◽  
Vol 3 (4) ◽  
pp. 93-98
Author(s):  
Юрий Юмашев ◽  
Yuriy Yumashev ◽  
Елена Постникова ◽  
Elena Postnikova
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
Legal Regulation ◽  
Copyright Law ◽  
World Intellectual Property Organization ◽  
The Internet ◽  
Private International Law ◽  
Member States ◽  
Eu Member States ◽  
The Eu

The article deals with international law aspects of the GCL. To this aim firstly the international conventions on copyright law are analyzed, in particular: the Berne Convention for the Protection of Literary and Artistic Works in the wording of the Paris Act of 1971, the Convention on the Establishment of the World Intellectual Property Organization of 1967, the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961 and Aspects of intellectual property rights (TRIPS) 1994. There is also an analysis of the EU copyright law in terms of its correlation with the law of the EU member-states and an assessment of its evolution. It is emphasized that the core fact of origin of authorship is determined on the basis of the national legislation of the Member-States. Special attention is paid to the scope of the “principle of exhausted rights”. The article also touches upon the aspect of private international law. Particular attention is paid to the legal regulation of the Internet, including Internet providers, and its impact on the formation of the GCL. The problem of combating Internet piracy is also raised, as copyright infringement often occurs in relation to works published online. In addition, the article revealed what changes were made to the GCL to comply with EU law (including secondary law acts and the practice of the EU Court). The result of the study is, among other things, the conclusion that special legal mechanisms should be developed to regulate new forms of selling works that have emerged as a result of technological progress and in the near future the Internet will undoubtedly form ways for the further development of the GCL. However, this process can negatively affect the leading role of the author as a creative person.

4 Interpreting the Energy Charter Treaty

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Energy Charter Treaty ◽  
Written Form ◽  
Rules And Principles ◽  
Treaty Interpretation ◽  
The Law ◽  
Single Instrument ◽  
International Document ◽  
Multilateral Treaty

This chapter discusses the interpretation of the Energy Charter Treaty. The ECT is a multilateral treaty during the negotiation of which approximately fifty States participated, albeit to varying degrees. It goes without saying that in such a setting, there are many competing interests to take into account, often resulting in ambiguous treaty provisions. Indeed, almost every dispute based on the ECT involves issues of treaty interpretation. The law applicable to the interpretation of treaties is international law, unless the parties to the treaty in question have agreed otherwise. For all practical purposes, the most important international document when it comes to treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. Article 2(1)(a) of the Vienna Convention defines ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. There is little doubt that the ECT is covered by this definition. Article 26(6) of the ECT provides that disputes under it are to be resolved on the basis of its provisions and ‘applicable rules and principles of international law’. The chapter then considers Articles 31—3 of the Vienna Convention, which deal with the interpretation of treaties.

Forced Migration Governance: In Search of Sovereignty

2016 ◽  
Vol 17 (6) ◽  
pp. 923-948 ◽  
Author(s):  
Anuscheh Farahat ◽  
Nora Markard
Keyword(s):  
International Law ◽  
Asylum Seekers ◽  
Third World ◽  
Forced Migration ◽  
Loss Of Control ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Refugee Protection ◽  
The Eu

The European Union (EU) Member States have experienced the recent refugee protection crisis in the EU as a de-facto loss of control over their borders. They find themselves unable to subject entry into their territory to a sovereign decision. In response, the Member States have sought to regain full sovereignty over matters of forced migration, both unilaterally and cooperatively, seeking to govern a phenomenon—forced migration—that by definition defies governance. Unilateral measures include forced migration caps and a search for ways to circumvent responsibility under the Dublin system. Cooperative efforts by EU Member States include the search for ways to more effectively govern forced migration at the EU level and beyond. Supranational EU efforts include the introduction of an internal relocation scheme and support for Italy and Greece in processing asylum claims in so-called “hotspots.” Beyond the EU, Member States are seeking to externalize protection responsibility to third world countries under international agreements, in particular, by returning asylum seekers to Turkey. This Article outlines the unilateral and cooperative governance efforts undertaken and shows that states' sovereign decisions over migration are significantly limited in the case of forced migrants, both by EU law and by international law.

Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy?

2011 ◽  
Vol 13 (1) ◽  
pp. 1-30 ◽  
Author(s):  
Kees Groenendijk
Keyword(s):  
International Law ◽  
Policy Instrument ◽  
The European Union ◽  
Political Debate ◽  
Member States ◽  
Eu Member States ◽  
Legal Constraints ◽  
Integration Strategies ◽  
The Uk ◽  
The Eu

AbstractSeveral States require immigrants from outside the EU to participate in language or integration courses after arrival. In recent years, some EU Member States made passing a language test (Netherlands and Germany) or participating in a language course (France) a condition for a visa for family reunification for immigrants from certain third countries. Denmark and the UK introduced a similar requirement in 2010. The focus of his article is on three aspects: the political debate, the legal constraints and the effects. Firstly, the development of the pre-departure integration strategies is analyzed. What was the rationale behind the introduction and does is vary between Member States? Secondly, the legal constraints of EU and international law are discussed. Finally, the results of the first studies evaluating this policy instrument are presented. Is pre-departure a good predictor for immigrant’s ability to integrate? Does it actually assist integration, and what are the unexpected or counterproductive effects?

scholarly journals The European Union and Migration: An Interplay of National, Regional, and International Law

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 509-513
Author(s):  
Iris Goldner Lang
Keyword(s):  
European Union ◽  
International Law ◽  
The European Union ◽  
Member States ◽  
Global Migration ◽  
Eu Member States ◽  
The Law ◽  
Migration Law ◽  
The Eu ◽  
Third Country Nationals

If global migration law “includes all levels of the law,” then the European Union represents the most developed instance of the interplay of national, regional, and international law. Migration law in the European Union involves the interaction of EU Member States’ national laws, EU regional law, and international law. This complex interchange of different migratory legal regimes is the consequence of diverse, and sometimes conflicting, objectives and interests of the Union and its Member States, and the nature of EU law itself. This essay explores the impact of these three levels of the law on the four migratory regulatory categories—EU citizens, “desirable” third-country nationals, asylum seekers, and all other third-country nationals—and the three objectives associated with these categories. The predominance of one legal regime over another varies depending on the regulatory category of migrants and the objectives associated therewith. While describing the existing legal systems, the essay outlines their attributes and shortcomings, the most prominent being: a clear rift between the rights granted to EU citizens and to third-country nationals; EU Member States’ determination to reserve to their respective national territories a high level of national control over labor migration; and significant deficiencies of the EU asylum law which were brought to the surface by the recent refugee influx into the EU.

Strengthening the Single Market through informal dispute-resolution mechanisms in the EU: The case of SOLVIT

2018 ◽  
Vol 25 (1) ◽  
pp. 108-117
Author(s):  
Evgenia Kokolia
Keyword(s):  
Dispute Resolution ◽  
Single Market ◽  
Eu Law ◽  
Member States ◽  
Eu Member States ◽  
Eu Legislation ◽  
Cross Border ◽  
Key Characteristics ◽  
The Eu

SOLVIT is an informal out-of-court dispute-resolution tool between the EU Member States and Norway, Lichtenstein and Iceland to practically help citizens and businesses when encountering problems in cross-border situations with their rights enshrined in EU legislation. In light of the recently adopted Commission Communication on the reinforcement of SOLVIT, 1 the authors analyse its key characteristics and challenges. The authors concludes that an enhanced role of SOLVIT can efficiently promote a culture of compliance and smart enforcement of EU law in the Single Market together with the Member States.

The Jurisprudence of Integration

2020 ◽  
pp. 1-21
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Effective Response ◽  
Member States ◽  
Political Problem ◽  
Political Interpretation ◽  
The Eu

This chapter introduces the central legal and political interpretations of the European Union (EU). The Court of Justice of the European Union (CJEU) suggests a federalist legal account when it speaks of EU law as a ‘new legal order’ and as ‘autonomous’ from international law and the law of the member states. This doctrine has met with resistance by the courts of the member states, which have refused to apply EU law without reference to their domestic constitution. The courts’ views can be seen as either a ‘constitutional’ approach, which we find in Neil MacCormick’s ‘pluralism’ under international law, or in the ‘pluralism’ defended by Mattias Kumm, Neil Walker, and others. But the general legal architecture of the EU is not only a theoretical but also a political problem. These legal interpretations correspond to rival political approaches, namely ‘federalism’, ‘statism’, and a new view proposed in this book ‘internationalism’. The most challenging political view of the EU, articulated for example by the historian Noel Malcolm, believes that it is actually a serious risk to self-government and democracy. Any legal and political interpretation of the treaties supporting the legitimacy of the EU requires that we have an effective response to this democratic challenge. Can the EU be democratically legitimate?

Part III Observance and Application of Treaties, 16 The European Courts and the Law of Treaties: The Continuing Story

2011 ◽  
Author(s):  
Kuijper Pieter Jan
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Vienna Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Treaty Interpretation ◽  
The Law ◽  
The Eu

This chapter presents a critical analysis of the case law of the European Court of Justice and of the General Court relating to the application of the international law of treaties. It covers the some forty cases in which the Courts have referred explicitly to the Vienna Convention on the Law of Treaties 1969, and a few more where this happened implicitly, during the period 1998–2010. Inevitably the emphasis falls on the application of the rules of treaty interpretation to the international agreements concluded by the European Union (EU), but also to the founding treaties of the EU itself. The Courts have been confronted with great regularity with questions relating to the law of treaties and thus have become increasingly sophisticated in their use of it. The recent accusation that the Court is adverse to international law seems to be based on a few dramatic cases, not on the steady stream of smaller cases in which the law of treaties plays a role.

II. Fourteen Against One: The Eu Member States' Response To Freedom Party Participation In The Austrian Government

2000 ◽  
Vol 49 (4) ◽  
pp. 953-963 ◽  
Author(s):  
Matthew Happold
Keyword(s):  
European Union ◽  
Human Rights ◽  
International Law ◽  
Democratic Governance ◽  
Diplomatic Relations ◽  
Member States ◽  
Eu Member States ◽  
The Status ◽  
The Right ◽  
The Eu

The participation of the Freedom Party in the Austrian government has given rise to exceptional reactions both in Austria and internationally. The imposition of a freeze in bilateral diplomatic relations by Austria's European Union partners has been particularly notable, amounting to an unprecedented response to the election of a new government in another Member State. This note seeks to describe the development of events and assess the status of the 14 Member States' actions under international law, in particular in the light of any developing norms concerning non-intervention, respect for human rights and the right to democratic governance.

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