External Relations Law Research Articles

From C-73/14 to ITLOS Case No. 31: Examining the EU’s representation before International Courts and Tribunals, in light of the Principle of Sincere Cooperation under EU External Relations Law

From C-73/14 to ITLOS Case No. 31: Examining the EU’s representation before International Courts and Tribunals, in light of the Principle of Sincere Cooperation under EU External Relations Law

Strategic autonomy in the European Union’s external relations law

The article reviews the legal significance of the European Union’s quest for “strategic autonomy” in its external relations. First the political origin of the term is recapped and a legal definition proposed: “Striving for multilateral solutions, while being able to take lawful action alone to safeguard the Union’s values, fundamental interests, security, independence and integrity!” Second, the application thereof in the EU’s common commercial policy is reviewed. In particular, the recent EU legislative initiatives that combat economic distortions on the one hand are distinguished from the pieces of EU legislation that foster EU values worldwide on the other hand. Third, the Common Foreign and Security Policy is considered. It is shown how the EU’s reaction in the aftermath of Russia’s invasion of Ukraine led to an unprecedented array of use of available instruments (European Peace Facility, ten sanctions packages, support for Ukraine for its legal cases against Russia). The conclusion identifies a new defining moment for the European project through a remarkable legal push from intergovernmental to integrationist conduct in its external relations in the 2020s. strategic autonomy, external relations law, common commercial policy, CFSP, European Peace Facility

“Two Courts” for One Constitution: Fragmentation of Constitutional Review in the Law of the Kosovo Specialist Chambers in The Hague

AbstractThe Kosovo Specialist Chambers embody a remarkable project involving elements of the domestic law of the Republic of Kosovo, the EU’s external relations law, and international criminal law. The Chambers’ hybrid nature is not only unique, but also atypical in regards to its influence in Kosovo’s constitutional order. The Specialist Constitutional Chamber is one of the instances of the Kosovo Specialist Chambers sitting in the Hague. The Specialist Constitutional Chamber resembles Kosovo’s Constitutional Court on a specific, though exclusive, area of law—the law surrounding the court in general. The two courts not only exercise the same generic function—on the basis of exclusive material criteria—but also possibly parallel and compete with each other. The relationship between the “two courts” is at best explained with the term “fragmentation of constitutional jurisdiction.” While the two courts are forced to endure under the same normative roof—the Constitution—they inherently exercise often conflicting functions and protect irreconcilable ideological perspectives. The article examines the interaction between the two courts primarily in a normative and jurisdictional perspective. It also presents recent tendencies of both courts to divert in divergent pathways. The article concludes that while the two courts present an unobserved case in comparative constitutional law, they also reveal an interesting and unconventional constitutional controversy appearing in the context of a sovereign country’s relationship with international law obligations.

The EU’s Representation in International Organizations: Case C-161/20 Commission v. Council (International Maritime Organization)

This article analyses Case C-161/20 Commission v. Council (International Maritime Organization (IMO)), in which the Court of Justice of the EU upheld a Council Decision endorsing a submission to the IMO by the Presidency of the Council on behalf of the European Commission and the Member States (MSs), and not on behalf of the EU. With this case, the Court contributes to the debate on the EU’s external representation, particularly in the context of an international organization to which all the MSs, but not the EU, are parties and which regulates issues falling within EU competences. Combining an EU external relations law and a public international law perspective, this article assesses the Court’s reliance on and interpretation of international law and explores the boundaries carved by EU and international law for the participation of the EU as a separate entity in the IMO. It also seeks to discern how this case fits within the Court’s established ‘gatekeeping’ mechanisms in determining the effects of international law in the EU legal order and whether it signals an emerging, more flexible engagement with international law. International Maritime Organization, European Union, international organizations, Court of Justice of the EU, competences, international law, external representation

The Case of Implied External Powers – The History of Pragmatism in the EU’s External Relations Law

EU external relations law is not very much at the centre of the Hungarian EU legal discourse, so the matter of implied external competences may seem almost mystical. However, it is not mysterious at all, its development is rather evidence of the presence of pragmatism in the development of EU law, as the implied external powers were even used to extend competences in the period of the EEC. The aim the paper is to show how this pragmatism has been manifested from time to time in the development of the implied external competences. To do so, the paper also draws on Sinclair’s theory, who sees the phenomenon of the expansion of powers in the law of international organisations as a coherent process in some cases. Accordingly, the article describes case C-22/70. Commission v. Council (ERTA), including the main arguments made in the case, and the relevant circumstances as well. This is followed by the explanation of the expansion of the implied powers to highlight the appearance of its different aspects involved. Finally, the paper points out a “dialogue” that has been developed between the Member States and the Court of Justice during the process of the Constitutional Treaty and the Lisbon reforms.

A New Legal Framework for EU-UK Relations: Some Reflections from the Perspective of EU External Relations Law

A New Legal Framework for EU-UK Relations: Some Reflections from the Perspective of EU External Relations Law

The Web of Autonomy of the EU Legal Order: Achmea

Achmea is a seminal case on intra-EU bilateral investment treaties, which will have wider effect on EU external relations law. The judgment has triggered the renegotiation of all intra-EU bilateral investment treaties (BITs), and is one in a long strand of cases in which the Court has interpreted the principle of autonomy of the EU legal order. In Achmea, the Court reinstates the claim against international law and, more specifically, against the judicial control of external judicial views. The case is closely connected to the subsequent Opinion 1/17, and was expected to anticipate the results thereof in terms of the compatibility of investor-state dispute settlement (ISDS) proceedings with the principle of autonomy. The aim of this chapter is to study the relevance and consequences of Achmea for the EU legal order in general and EU external relations in particular. The ‘blind autonomy’ which the Court has purportedly resorted to in Achmea may be difficult to maintain in all practical situations. Inevitably, some exceptions will be necessary to accommodate ‘reasons of policy’, which are already appearingat both judicial and legislative levels. The former includes Opinion 1/17. At the legislative level, four Member States have refrained from signing the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union (‘Termination Agreement’) following the Achmea judgement. These exceptions lead in the direction of an asymmetric conception of autonomy in EU law, which strongly contrasts with the ‘totalitarian vision’ endorsed by Achmea.

The Integration of Environmental Sustainable Development Goals into International Trade Agreements: The Case of the EU-Japan Economic Partnership Agreement

The UN Sustainable Development Goals (SDGs) lay the foundation for the integrated governance of sustainable development, envisaging the optimal balance between the environmental, social and economic aspects of sustainability. However, a vital condition for improving the overall governance of sustainable development, is that these aspects are mainstreamed uniformly into all international agreements related to sustainable development. This article seeks to shed light on the following research question: how core principles and priorities of a universally endorsed act of an international organization with considerable environmental implications – the UN Resolution adopting the SDGs – interact with and influence the scope of a primary implementing means of EU external relations law with strong environmental footprint, the EU bilateral trade agreements with third countries. Drawing methodologically on the examination of a specific EU trade regime that of the EU-Japan Economic Partnership Agreement (EUJEPA), it explores the inextricable interlinkages and coherence between environmental SDGs and core provisions enshrined in EUJEPA. More specifically, it investigates the way in which key environmental SDGs, legally founded on international environmental agreements, are integrated in the regulatory framework of EUJEPA governing the relationship between trade and sustainable development. The article concludes that the trade relations between the EU and Japan, as reflected in legal terms in EUJEPA, contribute to achieving crucial environmental SDGs and fundamental objectives of international environmental agreements. Thus, it highlights the instrumental role of modern EU bilateral trade agreements in promoting, in consistency with the SDGs, environmental protection and sustainable management of biodiversity, forestry and fishery resources.

Informalization of EU Bilateral Instruments: Categorization, Contestation, and Challenges

Abstract The EU and its Member States both contribute to the informalization of international relations’ tools by concluding bilateral soft law instruments which prepare, implement, and especially replace international agreements. This contribution analyses the EU practice of applying international soft law and focuses on the institutional challenges deriving from external relations’ soft law instruments. It has the three-fold aim of explaining why the informalization or ‘softification’ of EU bilateral instruments has proliferated, categorizing them according to their function and purpose in international law and EU external relations law and finally assessing the legal implications in EU law resulting from their application. The paper will argue that while, in practice, differences between international treaty law and bilateral soft law disappear, more legal challenges arise in the EU system through bilateral soft law measures than international agreements. This is caused by the rules on EU external representation, dispersed among supranational and intergovernmental EU actors and characterized by their general wording. International soft law tools operate in a politically contested area with several actors and a variety of informal instruments. The flexibility and hybrid character of soft law form an advantage for the institutions at the expense of the rule of law, legal certainty, and legal review.

EU external relations law: Time for a reality check?

EU external relations law: Time for a reality check?

European Union’s Banking Diplomacy Law: A Legal Fragment of EU’s Foreign Affairs

This article takes the move from the recognition that the law of EU external relations is fragmentary. EU foreign affairs are conducted through a Common Foreign and Security Policy (CFSP), a Common Commercial Policy, and other competences with external implications. This article is dedicated to one of such competences, whose external side has been hitherto largely underexplored: the monetary policy of Member States whose currency is the Euro. With a view of offering a first assessment of this ‘banking diplomacy’ law, the article outlines the main legal features of the external aspects of Banking Union (BU) and their interactions with other external relations competences. It does so by following four themes: investment, external representation, prudential supervision, and resolution. Banking Union, External Relations Law, Diplomacy, European Union, Banking Law, Single Supervisory Mechanism, Single Resolution Mechanism, Investment Law

EU external relations law and Brexit: ‘When Pluto was a planet’

‘When I was your age, Pluto was a planet’ was a popular joke after the celestial body’s reclassification as a ‘dwarf planet’. In many ways, the story of Pluto is an appropriate metaphor for the United Kingdom after Brexit. Just as textbooks on astronomy had to be updated to reflect Pluto’s changed status, legal scholarship needs to adapt to the fact that the UK is relegating itself into the outer orbits of the European system of integration and cooperation, yet remains unable to break free from the centre’s gravitational pull. Crucially, the UK has become an object of EU external action, rather than a subject that can manipulate the levers from the inside. This change is also of particular significance for the scholarship of EU external relations. Highlighting, organising, and explaining the changes that Brexit causes for the field and with a view to charting its way forward, this article argues that the UK’s withdrawal will contribute to the further normalisation of EU external relations law as a field of scholarship. Following a brief explanation of why EU external relations law is a doubly peculiar area of scholarship and an overview of the origins and development of EU external relations law as a field, the article elaborates on three main consequences of Brexit for EU external relations law research and explains how each contributes to normalisation: disposing of the most ‘awkward member’, boosting reforms for greater effectiveness, and infusing a sense of geopolitical realism.

The secret life of non-recognition: EU-Israel relations and the obligation of non-recognition in international law

ABSTRACTThe European Union (EU) is undertaking a prolonged, slow-burning revision of its relations with Israel, driven by the need to avoid recognition of an illegal situation. This article reviews these ongoing developments from the perspective of international law. As compared with the EU's response to the annexation of Crimea by imposing sanctions on Russia, its measures vis-à-vis Israel aim at protecting the EU internal legal and political order from the illegal situation created by Israel's institutional practice with regards to the Palestinian territory. The EU's approach to non-recognition is a rule-based cornerstone of its external relations law and foreign policy, and provides insights on the otherwise opaque workings of this obligation in international law and the transnational legal enforcement process in which it manifests.

The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy

EU external relations law – Court of Justice of the European Union – Common Foreign and Security Policy – Judicial actors – International courts – Jurisdiction – EU law – Primacy – Damages – Infringements – Direct actions – Preliminary references – the Opinion procedure – Staffing – Future scenarios

EU Foreign Relations Law as a Field of Scholarship

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a “new legal order” distinct from international law—and it is concerned with the European Union as a global actor, a “strange animal” in that the EU is neither a state nor a classical international organization.

Structural Principles and their Role in EU External Relations Law

Structural Principles and their Role in EU External Relations Law

Book Review: The European Court of Justice and External Relations Law. Constitutional Challenges, by Marise Cremona and Anne Thies. (Oxford: Hart Publishing, 2014)

Book Review: <i>The European Court of Justice and External Relations Law. Constitutional Challenges</i>, by Marise Cremona and Anne Thies. (Oxford: Hart Publishing, 2014)

International Banking Standards, Private Law and the European Union

Over the past decades, but especially since the 2008 global financial crisis, there has been a proliferation as well as an intensification of international regulatory processes regarding the activities of banks: this goes from the work of the Basel Committee on Banking Supervision on prudential supervisory standards to the activities of the OECD-based Financial Action Task Force (FATF) on money laundering, the negotiations within the World Trade Organization (WTO)’s General Agreement on Services (GATS) regarding financial services, and the more recent work of the Group of 20 (G20) and the Financial Stability Board (FSB) on issues as diverse as credit rating agencies and systemically important financial institutions. In all of these bodies, the European Union (EU) is involved, though often on a different institutional basis, going from full membership to observer status; some bodies count all EU Member States among their members whereas others are more limited in membership. This contribution looks into the role which the EU plays in this area of standard setting for international banking activities, in particular those norms that can broadly be characterized as ‘regulatory private law’, thereby bringing together both dimensions of ‘EU external relations law’ and ‘private law’. First of all, it is explored how the EU engages in practice within the international banking standard setting processes concerned. It then turns to the impact of international banking standards on internal EU law- and policy-making in a number of chosen areas. The paper attempts to assess the influence which the EU exercises – partly through exporting its own regulatory agenda/acquis - on international law- and policymaking in this area.

Book Review: EU External Relations Law and Policy in the Post-Lisbon Era, edited by Paul James Cardwell. (The Hague: TMC Asser Press, 2012)

Book Review: <i>EU External Relations Law and Policy in the Post-Lisbon Era</i>, edited by Paul James Cardwell. (The Hague: TMC Asser Press, 2012)

On the Use of Law in Transatlantic Relations: Legal Dialogues between the EU and US

AbstractLaw plays a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU external relations law, might seem neither conventional nor apparent. Non‐bilateral transatlantic relations increasingly deploy law as a communication tool between the two legal orders. For example, in 2011, the US intervened informally and anonymously in the formulation of EU legislation, while the US House of Representatives passed legislation to prohibit the impact of EU law upon the US legal order. Another example is constituted by EU amicus curiae submissions before the US Supreme Court in death penalty cases. The so‐called Brussels effect is also the subject of recent scholarship, assessing the perceived spillover effect of EU regulatory standards onto US rules. The paper provides many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on transatlantic relations.