Commission's Draft Research Articles

Shrouded in secrecy – does the comitology procedure for GDPR adequacy decisions fit its purpose?

With the entry into force of Directive 95/46/EC, the EU based its approach toward data transfers on adequacy decisions, unilateral acts of the European Commission, issued as implementing acts. The EU co-legislators subsequently copied this model into the GDPR and the LED. Since the very beginning, the adequacy procedure involves a comitology phase in which a committee consisting of representatives of Member States expresses its opinion about the Commission's draft implementing act. I argue that adequacy, designed as a technical process, evolved into a tool in which politics, including economic relations and commercial interests, play an ever-greater role. This goes against the concept of comitology, the legitimacy of which is built on denying the political nature of what is delegated. Taking into account the above, as well as other shortcomings of the EU adequacy model, I argue that it is the right time to rethink it. There is also the need for a separate discussion regarding the role of the Article 93 Committee in the adequacy procedure, to be conducted together with the debate on the role and accountability of the European Commission.

THE UN ILC’S DRAFT CONCLUSIONS ON THE PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW: THE TALE OF THE ANNEX

This paper examines the implications of the General Assembly's failure to adopt a resolution on the International Law Commission's Draft Conclusions on Peremptory Norms (“Draft Conclusions”) during its seventy-seventh session. While the non-decision does not affect the legal status of the Draft Conclusions, it raises questions about its reception and the underlying reasons for the lack of resolution adoption. The inclusion of an Annex with a non-exhaustive list, particularly addressing the right to self-determination, led to opposition from a subset of States. Despite the strong pedigree of the norms in the Annex, dissenting voices, primarily questioning the status of certain norms, played a pivotal role in the non-decision. This paper contends that the dissenters' success in preventing the adoption of a resolution could prompt the International Law Commission to exercise greater caution in its future work. The Commission may become more inclined to avoid addressing sensitive issues, potentially leading to a tendency to seek the lowest common denominator in its outputs. The analysis delves into the potential impact on the Commission's approach and the broader implications for the development and acceptance of peremptory norms of general international law.

At the frontlines of implementing the right to a healthy environment: Understanding human rights and environmental due diligence in relation to armed conflicts

AbstractPotential harm to human rights and the environment, including by corporate actors, is amplified in situations of conflict. This article focuses on applying the right to a healthy environment in relation to armed conflicts and corporate responsibility. In particular, it analyzes and compares due diligence requirements in the European Union Conflict Minerals Regulation and the International Law Commission's Draft Principles on Protection of the Environment in Relation to Armed Conflicts and examines how these align with the right to a healthy environment.

Peer review of the pesticide risk assessment of the active substance dimethomorph.

The conclusions of EFSA following the peer review of the initial risk assessments carried out by the competent authorities of the rapporteur Member State The Netherlands and co-rapporteur Member State Germany for the pesticide active substance dimethomorph and the assessment of applications for maximum residue levels (MRLs) are reported. The context of the peer review was that required by Commission Implementing Regulation (EU) No 844/2012, as amended by Commission Implementing Regulation (EU) No 2018/1659. The conclusions were reached on the basis of the evaluation of the representative uses of dimethomorph as a fungicide applied via foliar spraying on field strawberry and grapevine crops and permanent greenhouse lettuce crops; via drenching on field and permanent greenhouse strawberry crops and via dripping on permanent greenhouse strawberry crops. The peer review also provided considerations on whether exposure to humans and the environment from the representative uses of dimethomorph can be considered negligible, taking into account the European Commission's draft guidance on this topic. MRLs were assessed in potatoes, other root and tuber vegetables (except radishes), stem vegetables (except celery, leeks, globe artichokes, sugar beet, cereal forage and straw). The reliable end points, appropriate for use in regulatory risk assessment and the proposed MRLs, are presented. Missing information identified as being required by the regulatory framework is listed. The concerns are reported where identified.

Peer review of the pesticide risk assessment of the active substance metiram.

The conclusions of EFSA following the peer review of the initial risk assessments carried out by the competent authorities of the rapporteur Member State Italy and co-rapporteur Member State the United Kingdom for the pesticide active substance metiram are reported. The context of the peer review was that required by Commission Implementing Regulation (EU) No 844/2012, as amended by Commission Implementing Regulation (EU) No 2018/1659. The conclusions were reached on the basis of the evaluation of the representative uses of metiram as a fungicide on grapes (wine table) and potatoes (all being field uses). It was concluded that following the guidance on this topic, metiram has endocrine disrupting potential, which is a cut-off criterion for non-approval of an active substance. Considerations are also provided on whether exposure to humans and the environment from the representative use of metiram on potatoes can be considered negligible, taking into account information from the applicant and the European Commission's draft technical guidance on this topic. The information available indicated this exposure was not negligible. The reliable end points, appropriate for use in regulatory risk assessment are presented. Missing information identified as being required by the regulatory framework is listed. Concerns are reported where identified. An evaluation of data concerning the necessity of metiram as a fungicide to control a serious danger to plant health which cannot be contained by other available means, including non-chemical methods is also presented.

Australian Government, Productivity Commission, Zone Tax Offset Review Response to Productivity Commission Draft Report

Australian Government, Productivity Commission, Zone Tax Offset Review Response to Productivity Commission Draft Report

Overlap Between Complicity and Positive Obligations: What Advantages in Resorting to Positive Obligations in Case of Partnered Operations?

Abstract Partnered operations are very frequent and pose complex questions in international law, such as the allocation of responsibility in cases of violations of international human rights law and/or international humanitarian law (IHL). The present article deals with the question of complicity in partnered operations between States and between States and/or non-State actors, focusing on the possible overlap between responsibility for complicity and responsibility for breach of positive obligations in partnered operations in the light of the relevant case law of the International Court of Justice and of the European Court of Human Rights. As the requirements laid down by art. 16 of the International Law Commission Draft Articles on the Responsibility of States with respect to complicity are often difficult to meet, the author intends to explore the potential advantages of resorting to positive obligations in light of the due diligence standard. Although the article focuses primarily on human rights violations, in the final section the author investigates the benefits of this approach also with respect to breaches of IHL.

Updated peer review of the pesticide risk assessment of the active substance asulam (variant evaluated asulam-sodium).

The conclusions of EFSA following the peer review of the initial risk assessments carried out by the competent authority of the rapporteur Member State, the United Kingdom (France after Brexit), for the pesticide active substance asulam and the assessment of applications for maximum residue levels (MRLs) are reported. The context of the peer review was that required by Regulation (EC) No 1107/2009 of the European Parliament and of the Council. The conclusions were reached on the basis of the evaluation of the representative use of asulam (variant evaluated asulam‐sodium) as a herbicide on spinach and tulip, hyacinth and lily for bulb production. MRLs were assessed in spinach. The conclusions were updated with regard to the endocrine‐disrupting properties following a mandate received from the European Commission in February 2019. In addition, the peer review also provided considerations on whether exposure to humans and the environment from the representative uses of asulam‐sodium can be considered negligible, taking into account the European Commission's draft guidance on this topic. The reliable endpoints, appropriate for use in regulatory risk assessment and the proposed MRLs, are presented. Missing information identified as being required by the regulatory framework is listed. Concerns are identified. An evaluation of data concerning the necessity of asulam‐sodium as a herbicide to control a serious danger to plant health which cannot be contained by other available means, including non‐chemical methods is also presented.

Peer review of the pesticide risk assessment of the active substance benthiavalicarb (variant assessed benthiavalicarb‐isopropyl)

The conclusions of the EFSA following the peer review of the initial risk assessments carried out by the competent authorities of the rapporteur Member State, Poland, and co‐rapporteur Member State, France, for the pesticide active substance benthiavalicarb (variant assessed benthiavalicarb‐isopropyl) are reported. The context of the peer review was that required by Commission Implementing Regulation (EU) No 844/2012, as amended by Commission Implementing Regulation (EU) No 2018/1659. The conclusions were reached on the basis of the evaluation of the representative use of benthiavalicarb‐isopropyl as a fungicide on potato (field use). The peer review also provided considerations on whether exposure to humans and the environment from the representative uses of benthiavalicarb‐isopropyl can be considered negligible, taking into account the European Commission's draft guidance on this topic. The reliable end points, appropriate for use in regulatory risk assessment, are presented. Missing information identified as being required by the regulatory framework is listed. Concerns are identified. An evaluation of data concerning the necessity of benthiavalicarb‐isopropyl as a fungicide to control a serious danger to plant health which cannot be contained by other available means, including non‐chemical methods, is also presented.

Peer review of the pesticide risk assessment of the active substance clofentezine.

The conclusions of the EFSA following the peer review of the initial risk assessments carried out by the competent authorities of the rapporteur Member State, Spain, and co‐rapporteur Member State, the Netherlands, for the pesticide active substance clofentezine and the assessment of applications for maximum residue levels (MRLs) are reported. The context of the peer review was that required by Commission Implementing Regulation (EU) No 844/2012, as amended by Commission Implementing Regulation (EU) No 2018/1659. The conclusions were reached on the basis of the evaluation of the representative use of clofentezine as an acaricide on citrus, pome fruits, strawberry, tomatoes and aubergine. The peer review also provided considerations on whether exposure to humans and the environment from the representative uses of clofentezine can be considered negligible, taking into account the European Commission's draft guidance on this topic. The reliable end points, appropriate for use in regulatory risk assessment, are presented. Missing information identified as being required by the regulatory framework is listed. Concerns are identified. An evaluation of data concerning the necessity of clofentezine as acaricide to control a serious danger to plant health which cannot be contained by other available means, including non‐chemical methods is also presented.

Marchal, Lemaire and Dewez v. Mukeshimana-Ngulinzira and Others; Belgian State v. Mukeshimana-Ngulinzira and Others

179State responsibility — Imputability — International Law Commission Articles on State Responsibility — International Law Commission Draft Articles on the Responsibility of International Organizations — Imputability in context of United Nations peacekeeping operations — Responsibility of troop-contributing countries — Ultimate control — Effective controlWar and armed conflict — Non-international armed conflict — United Nations — Peacekeeping — United Nations Assistance Mission for Rwanda (UNAMIR), 1993 — Rwandan genocide — The law of Belgium

Relating to ‘The Other’

The International Law Commission (ILC) Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance (MLA) Initiative have largely run in tandem throughout their development. Both projects are motivated by similar gap- filling desires and both projects aim to expand the international criminal justice toolkit; however, these similarities have led to questions if both projects are neces‐ sary. This article addresses that question, looking at how different actors have answered this question during the respective processes of maturation of both pro‐ jects and where both projects stand today. It argues that, while there is significant overlap between the projects, both instruments have merits which the other is lack‐ ing, and the optimal solution would be to bring both projects to fruition.

Crimes Against Humanity in the ‘Western European and Other’ Group of States: A Continuing Tradition

This article appears in a volume of the African Journal of International Criminal Justice devoted to the International Law Commission's Draft Articles on Prevention and Punishment of Crimes Against Humanity and its reception in different regions of the world. This article focuses on the Western Europe and Other Group (WEOG) of states. WEOG states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commission (ILC)’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in Western Europe and the Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.

Mechanical failure of fresh nuclear grade iron–chromium–aluminum (FeCrAl) cladding under simulated hot zero power reactivity initiated accident conditions

The reactivity initiated accident (RIA) is a postulated accident in light water reactors initiated by a rapid increase in reactivity which causes an increase in fission rate and fuel temperature. One potential mode of fuel system failure during RIA is pellet cladding mechanical interaction (PCMI) due to the rapid thermal expansion of the fuel pellet. Simulated PCMI experiments were performed by rapidly pressurizing iron-chromium-aluminum (FeCrAl) cladding tube samples using a hydraulic modified burst test system, causing the specimens to burst under a biaxial loading path. Deformation and rupture of the specimens were tracked with a telecentric lens and high-speed camera system. Outer surface strains were calculated using digital image correlation (DIC) on speckle patterns painted on the specimens’ outer surfaces. Experiments were conducted at approximately 275 °C, representative of hot zero power RIA conditions. The failure hoop strain was DIC-calculated between approximately 1.8–3.4%, corresponding to quasi-static energy depositions of approximately 110–260 calories per gram UO2 assuming initial pellet-cladding contact. These conditions are very similar to the proposed energy deposition limit of 150 calories per gram UO2 for unirradiated zirconium-based cladding in US Nuclear Regulatory Commission (NRC) Draft Regulatory Guide 1327. A very small strain rate dependence was observed in the data, with the magnitude of the failure hoop strain decreasing slightly with increasing strain rate. This observed dependence may be relevant because the FeCrAl cladding strain rate will be approximately 20% higher than in zirconium-based cladding due to the harder neutron spectrum and resultant shorter neutron generation time.

The New South Wales Law Reform Commission Draft Proposals on consent in sexual offences: a missed opportunity?

ABSTRACT This article analyses the Draft Proposals that emerged from the New South Wales Law Reform Commission (NSWLRC) Review of Consent in Relation to Sexual Offences. The NSWLRC Review was prompted in significant part by the high-profile case of R v Lazarus. We argue that the Draft Proposals do not adequately respond to the legal failures highlighted by Lazarus. In this sense, they represent a missed opportunity for substantive law reform.

Disharmonization in the Regulation of Transgenic Plants in Europe

Disharmonization in the Regulation of Transgenic Plants in Europe

Ngos and the International Law Commission Draft Articles on the Protection of Persons in the Event of Disasters: A Relationship of Mutual or Grudging Respect?

This article analyses the role of NGOs in the development and drafting of disaster law in general, and the ILC draft Articles on the Protection of Persons in the Event of Disasters in particular, and by extension what this reveals regarding NGO subjectivity in international law. The substantive content of the draft Articles and their commentaries and how they pertain to NGOs from an operational perspective, is a further area of analysis. The article initially frames humanitarian NGO subjectivity and how this constituency has evolved and how that has implications for its realm of action. Secondly, given its underpinning importance to the ILC project, an analysis of NGO disaster law activity (both autonomous and institutional) is analysed via key instruments. NGOs are a complex and diverse community and attempts to address them in some standardised fashion (which was also acceptable to states) was always going to challenge the ILC. These complexities are analysed in the final main substantive section of the article with particular attention being given to draft Article 12 and the issue of external assistance to disaster-affected states.

VULNERABILITY AND THE INTERNATIONAL LAW COMMISSION'S DRAFT ARTICLES ON THE PROTECTION OF PERSONS IN THE EVENT OF DISASTERS

AbstractThis article ponders the possibilities existing for legal re-understandings of vulnerability and adopts the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters (2016) as its principal discursive context. Despite some promise and potential, the draft Articles retreated to conservative understandings of disaster-vulnerability and missed an opportunity for a sophisticated formulation. This article argues for disaster law's engagement with contemporary social science research. The work of critical geographers, historians and anthropologists in political ecology is particularly apposite. By rejecting geophysical outlooks in favour of structuralist understandings of disaster-vulnerability, such research facilitates consideration of interrelated histories and the role of economics in producing disaster-vulnerability. This article argues that such perspectives allow for reconsideration of current legal understandings regarding disaster-vulnerability (particularly in relation to international cooperation and risk and reduction) and thereby offer some promise for enriching disaster law's comprehensiveness and relevance.

Peer review of the pesticide risk assessment of the active substance thiacloprid.

The conclusions of EFSA following the peer review of the initial risk assessments carried out by the competent authorities of the rapporteur Member State the United Kingdom and co‐rapporteur Member State Germany for the pesticide active substance thiacloprid are reported. The context of the peer review was that required by Commission Implementing Regulation (EU) No 844/2012. The conclusions were reached on the basis of the evaluation of the representative uses of thiacloprid as an insecticide on oilseed rape foliar use and maize seed treatment. The peer review also provided conclusions on whether exposure of humans to thiacoprid can be considered negligible, taking into account the European Commission's draft guidance on this topic. Confirmatory data following the review of existing maximum residue levels (MRLs) according to Article 12 of Regulation (EC) No 396/2005 were also assessed in this conclusion. The reliable end points, appropriate for use in regulatory risk assessment are presented. An evaluation of data concerning the necessity of thiacloprid as an insecticide to control a serious danger to plant health which cannot be contained by other available means, including non‐chemical methods is presented. Missing information identified as being required by the regulatory framework is listed. Concerns are identified.

Peer review of the pesticide risk assessment for the active substance bromoxynil in light of negligible exposure data submitted.

The conclusions of EFSA following the peer review of the initial risk assessment carried out by the competent authority of the rapporteur Member State France for the pesticide active substance bromoxynil are reported. The European Commission requested EFSA to conduct a peer review and provide its conclusions on whether exposure of humans to bromoxynil can be considered negligible, taking into account the European Commission's draft guidance on this topic. The conclusions were reached on the basis of the evaluation of the representative uses of bromoxynil as a herbicide on maize and straw cereals. The reliable endpoints, derived from the studies and the literature data presented in the dossier and considered appropriate for use in regulatory risk assessment, are presented.