Perspective Of Public International Law Research Articles

Starlink’s Provision of Telecommunication Services During the Time of Armed Conflict and Its Consequences from the Perspective of Public International Law

This article attempts to provide an overview of the most important international regulations relating to the provision of telecommunication services by private companies to one or more belligerent parties in times of an armed conflict. Taking as an example the recently widely commented issue of Starlink allegedly withholding its services otherwise provided to the Ukrainian Armed Forces, this article reviews the issue from the perspective of general public international law as well as international space law. Specifically, the customs and regulations concerning the attributability of private parties actions as well as peaceful utilisation of outer space are scrutinised.

Conceptualising Extraterritoriality. Public International Law and Private International Law Considerations

Abstract The aim of this article is to analyse extraterritoriality from public international law and private international law perspectives. Although many scholars relate the exercise of extraterritorial jurisdiction to both private and public international law, in practice the topic is mainly considered as belonging to the latter. Moreover, extraterritorial jurisdiction is not a common notion under private international law. Perhaps because the extraterritorial norm is intended to regulate first and foremost state conduct and not relationships between private persons, but this vision does not take into account that the latter are frequently affected by the norm. It is argued here that from a public international law perspective, the legal framework of extraterritorial jurisdiction is unsettled and incomplete. The bottom line is that states are largely free to unfold their power, given that international law does not really regulate extraterritorial jurisdiction but only establishes the negative obligation not to trespass on state sovereignty. Thus, considering extraterritorial jurisdiction from a national perspective, in this paper, under the general framework of private international law is not only necessary but also justified. In addressing the above, this article will first analyse extraterritoriality as an exception under public international law (2). It will reflect on the lawful/unlawful grounds for the exercise of extraterritorial jurisdiction and will show that the abandonment of territoriality in jurisdictional assertions is more desirable than feasible. Then extraterritoriality will be analysed as an inherent feature of private international law, that can be traced in all three domains regulated by the private international law (3). It will also make a case on the extraterritorial reach of national constitutions.

The Sale of EU Citizenship and the 'Law' Behind It

Investment migration in the European Union (‘EU’) as well as outside of it has been the subject of many legal and socio-political studies, with numerous developments emerging in recent years. There is considerable disagreement on the legal position at EU level, which can be observed in the differing views of commentators on the EU’s competence on the matter. Thus, this article maps the situation concerning citizenship by investment (‘CBI’) in the EU by canvassing the policy and legal developments to date as well as the main critical perspectives from scholarly work. In doing so, this article explores the exact legal position of both EU Member States and organs in the context of the split of competence on nationality matters, as well as routes to potential intervention at EU level. The core research question in this regard is whether the matter is one of law or merely policy, and what could justify EU level intervention in an effort to approximate Member States’ laws on investment migration. Thus, the first part of this article explores relevant theoretical frameworks before moving onto a discussion of trends and tendencies among states (inside and outside the EU). A brief overview of the risks, scandals and controversies attached to CBI throughout the years will follow. Next, the internal and external dimensions of the EU’s approach to CBI will be discussed in order to lay the foundation for a more substantive analysis of the EU’s legal position on CBI, including a discussion on EU citizenship and nationality laws. Last, this article will briefly consider CBI from a public international law perspective, and conclude with a critical commentary of the issues canvassed, including on the so-called ‘soft law’ considerations of citizenship and on the European Commission’s proposals in response to investment migration in the EU.

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

Green Power K/S and SCE Solar Don Benito APS v Kingdom of Spain: How EU Law Allegedly Trumps International Investment Law

The Green Power arbitral tribunal is the first tribunal ever (and so far, the only one) that accepted the EU law jurisdictional objections raised by an EU Member State. For this reason alone, this decision is historic. Instead of adopting a public international law perspective for determining the question whether it has jurisdiction, the arbitral tribunal adopted an European law perspective and therefore considered itself bound by the CJEU jurisprudence regarding Achmea and Komstroy. With its decision, which came out only a week before the Contracting Parties to the ect concluded their modernisation negotiations in which the EU and its Member States agreed to carve out the arbitration provision for intra-EU ECT disputes, the arbitral tribunal showed that it had a good sense of what was to come in any event. The consequences of all this are that European investors will be stuck with the domestic courts of the Member States and the European Court of Human Rights – with all their limitations.

Constitutio posterior non derogat pactis prioribus? Chiles völkerrechtliche Verträge im Kontext der Verfassungsablösung

Chile’s International Treaties in the Context of the Replacement of the Constitution From a public international law perspective, the domestic process ideally does not affect treaty obligations. Already in normal times, however, there are innumerable options to retreat from treaties. The exceptional case of constitutional replacement hardly extends these. Could the ‘eternity clause’ of 2019 (Art. 135 IV of the Chilean Constitution), which states that the contents of international treaties are to be respected, subject the Constitutional Convention to stronger ties than international treaty law itself? This article rejects readings that tried to perpetuate the substantive content of the treaties or to forbid changes that would make termination of treaties necessary. The lack of justiciability and the principle of truthfulness of norms speak against them. The clause only warned to proceed in a manner that is gentle on international law. Based on this, the third part shows Chile’s wide margin to cancel or alter existing treaty regimes and sees opportunities for respect of treaties by practical concordance and the activation of secondary legal protection in accordance with international law in the event of contradictions that cannot be resolved in accordance with treaties.

Legal status of the San Remo Directive from the perspective of public international law

SanRemo Manual, although not a binding document, seeks to provide a contemporary revision of applicable international law on armed conflict at sea. In order to prevent the previous rules from being forgotten and to create different interpretations of these rules, the mentioned directive has tried to revise the rules of naval war law in accordance with the developments of international law. However, the legal status of the SanRemo Manual in international law and its validity among jurists and governments is unclear and there are differences. Purpose of this brief is to assess the validity of the SanRemo Manual from the perspective of customary international law and soft law. Therefore, considering the content of the instruction and considering that instruction has been compiled by legal and naval experts, the author seeks to answer these questions: if SanRemo Manual is considered to be the source of the law of naval armed conflict, in which category does the resources fall, soft law or customary international law? Findings of the study indicate that the content of SanRemo instruction, Addition to having the validity of customary law in the traditional sectors, also has the validity of soft law in the fields that are innovative in the field of naval law. In recent years, SanRemo directive has also been widely cited by countries and international institutions.

The ‘Disappearing Island State’ Phenomenon. A Challenge to the Universality of the International Law of the Sea

This paper deals with the possible disappearance of some island States as a result of one of the negative effects of climate change, i.e., the sea level rise. In this sense, this phenomenon of ‘disappearing island States’ implies serious legal challenges to the Law of the Sea, the International Law and their alleged universality. Among others, the impact of the sea level rise on the maritime boundaries of the disappearing island States in addition to the feasibility of the proposed options to physically preserve the territory of the disappearing States are considered. From a Public International Law perspective, concerns as the possible disappearance of the constitutive statehood prerequisites (mainly, population and territory, which would progressively become uninhabitable), the need to avoid the statelessness of the disappearing island States’ nationals, or the hypothetical relocation of those ‘climate change refugees’ are analysed, too. Moreover, this contribution addresses the different strategies proposed in order to preserve the international legal personality of those States, namely: the acquisition of territory from other State, the federation with other States, the creation of governments in exile or the self-governing alternatives. In this sense, the studied alternatives seem unlikely to keep recognized over long time. Finally, consideration is given to the influence of this phenomenon in the universality of International Law, taking into account the principles and aims included in the Law of the Sea Convention (and its Preamble). The challenge of this phenomenon to the universality of International Law is based on the tough paradox according to which the smallest contributors to climate change (Small Island States) will be the most affected by climate change - even disappearing - and meanwhile their losses could eventually benefit some of the biggest contributors to climate change.

Extraterritoriality of EU law and human rights after Lisbon: The case of trade and public procurement: Conclusion

This is a conclusion to a special issue on extraterritoriality on EU law and human rights. It offers some reflections on the articles in the special issue, in particular from the perspective of public international law and international trade law. In this context, it looks at the distinction between the right of a State to regulate activities beyond its jurisdiction, and its obligation – including under human rights law – to do so. It also looks at how the answer might differ according to whether the form of regulation is direct or – especially common in international trade law, where the direct object of regulation relates to access to a domestic market – indirect.

احتجاز ملتمسي اللجوء من منظور القانون الدولي العام = Detention of Asylum Seekers from the Perspective of Public International Law

ملتمسي اللجوء | الهجرة غير النظامية | آلية احتجاز ملتمسي اللجوء | بدائل احتجاز ملتمسي اللجوء | المهاجرين غير النظاميين | مفوضية الأمم المتحدة للاجئين | الاحتجاز للتحقيق من الهوية | الإشراف المجتمعي | الإفراج بكفالة | السيادة الإقليمية | Asylum Seeker | Illegal Immigration | Mechanism of Asylum Seekers Detention | Illegal Immigrants | UNHCR | Detention to Verify Identity | Community Supervision | Release on Bail | Regional Sovereignty

Slovak Republic v. Achmea from a Public International Law Perspective: Is State Consent to Arbitrate Under Intra-EU BITS Still Valid?

Slovak Republic v. Achmea from a Public International Law Perspective: Is State Consent to Arbitrate Under Intra-EU BITS Still Valid?

Slovak Republic v. Achmea from a Public International Law Perspective: Is State Consent to Arbitrate Under Intra-EU BITs Still Valid?

This essay is a contribution to the debate on the implications of the recent decision of the CJEU in Slovak Republic v. Achmea on investment arbitration under intra-EU BITs. This essay critically examines the implications that the findings of the CJEU may have on the validity of State consent to arbitrate under treaties as a matter of public international law. The CJEU concluded that there is an inconsistency (or a treaty conflict) between provisions of intra-EU bits containing an agreement to arbitrate and provisions of the TFEU. The resolution of such a treaty conflict in favour of the TFEU inevitably affects the validity of agreements to arbitrate contained in intra-EU BITs. This essay considers the public international law rules on treaty conflict, in particular, Article 30(3) of the VCLT, and concludes that this provision’s requirement that conflicting treaties must deal with the same subject matter, will become central in the analysis of any tribunal dealing with the issue in the future. This requirement may serve as a lifeline for investment arbitration in the aftermath of Slovak Republic v. Achmea. The essay also addresses the conflict provision of Article 351(1) of the TFEU to conclude that it is not applicable to the conflict with BITs, and would thus not affect the validity of the consent to arbitrate contained in intra-EU BITs.

Recent Awards in Spanish Renewable Energy Cases and the Potential Consequences of the Achmea Judgment for Intra-EU ECT Arbitrations

Regulatory changes to the Spanish renewable energy support scheme have given rise to more than 30 ECT arbitration cases. Although Spain prevailed in the first two cases decided in 2016, investors were successful in two cases decided in 2017 and early 2018. This contribution describes and analyzes the findings of these latter two cases, Eiser v. Spain and Novenergia v. Spain. As the number of awards in renewable energy cases increases, one can discern emerging patterns in ECT jurisprudence concerning renewable energy. In addition to the two Spanish ECT cases, this contribution also examines the potential consequences of the Achmea judgment of the Court of Justice of the European Union for intra-EU ECT arbitration from both an EU law and public international law perspective. The authors conclude that the Eiser and Novenergia awards solidify the view that sudden, unexpected policy changes that are applied retroactively and which have a significant negative impact on investments will likely be considered as breaches of the ECT.

Marine Fisheries Law Enforcement Partnerships in Waters under National Jurisdiction: The Legal Framework for Inter-State Cooperation and Public-Private Partnerships with Non-governmental Organizations and Private Security Companies

In times of widespread illegal fishing, fisheries law enforcement is a big challenge for coastal States which often lack the necessary resources to properly police their maritime zones (Internal Waters, Territorial Sea, Archipelagic Waters, and Exclusive Economic Zone (EEZ)). As a result, enforcement efforts of coastal States often produce an insufficient “demonstration effect” (through monitoring, control and surveillance) and “deterrence effect” (through enforcement and sanctions). This inadequate enforcement capacity can be supplemented by inter-State cooperation and public-private partnerships with non-profit non-governmental organizations (NGOs) or other private entities such as for-profit private security companies (PSCs). However, environmental law enforcement powers such as search, question, arrest, and use of force are usually allocated to specific governmental law enforcement agencies such as the coast guard, environmental government agencies, customs agencies, or the navy. This raises the question if, and to what extent, other States or private actors such as NGOs and PSCs could assist in or take over law enforcement functions. The present article will approach this issue from an international legal perspective. It will first provide case-studies of inter-State cooperation and public-private partnerships in fisheries law enforcement for factual background. Particularly attention will be paid to parallels in the practice of inter-State cooperation and public-private partnerships. The case-studies will be followed by a legal analysis from the perspective of public international law with a focus on the international law of the sea. Finally, the article will offer some general conclusions about the legality of such cooperation schemes as well as practical potentials and risks associated with them.

International Cooperation on the Repression of Piracy and Armed Robbery at Sea Under the UNCLOS

As maritime criminal activities are increasingly committed across the borders, States have come to establish mechanisms of international cooperation to be implemented in territorial seas. This article examines such mechanisms with regards to the crime of piracy and armed robbery at sea from the perspective of public international law. This article tackles the significance of the mechanisms imposed on the zonal approach, particularly paying attention to the nature of these crimes. It concludes that under the frameworks, States are allowed to pursue various objectives such as securing the safety of navigation, maintaining security, or protecting the local economy. They do not, however, fundamentally alter the nature of the zonal approach. Nonetheless, by setting up a forum of dialogue between the coastal States and the user States, it promotes maritime governance of territorial seas.

Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law

This article considers the (il)legality of Crimea’s unilateral secession from Ukraine from the perspective of public international law. It examines whether the right to self-determination or an alleged right to (remedial) secession could serve as a legal basis for the separation of the Crimean Peninsula, as the Crimean authorities and the Russian Federation seem to have argued. The article explains that beyond the context of decolonization, the right to self-determination does not encompass a general right to unilateral secession and demonstrates that contemporary international law does not acknowledge a right to remedial secession. With respect to the case of Crimea, it argues that even when assuming that such a right does exist, the threshold in this regard is not met. In the absence of a legal entitlement, the article subsequently turns to the question whether Crimea’s unilateral secession was prohibited under international law. It contends that while the principle of territorial integrity discourages unilateral secession, it does not actually prohibit it. Nonetheless, there are situations in which an attempt at unilateral secession is considered to be illegal in view of the circumstances. It is argued that it is precisely this exception that is relevant in the case of Crimea.

Putting a Square Peg into a Round Hole? Assessment of the "Umbrella Clause" from the Perspective of Public International Law

Putting a Square Peg into a Round Hole? Assessment of the "Umbrella Clause" from the Perspective of Public International Law

International Cooperation on the Repression of Piracy and Armed Robbery at Sea under the UNCLOS

As maritime criminal activities are increasingly committed across the borders, States have come to establish mechanisms of international cooperation to be implemented in territorial seas. This article examines such mechanisms with regards to the crime of piracy and armed robbery at sea from the perspective of public international law. This article tackles the significance of the mechanisms imposed on the zonal approach, particularly paying attention to the nature of these crimes. It concludes that under the frameworks, States are allowed to pursue various objectives such as securing the safety of navigation, maintaining security, or protecting the local economy. They do not, however, fundamentally alter the nature of the zonal approach. Nonetheless, by setting up a forum of dialogue between the coastal States and the user States, it promotes maritime governance of territorial seas.

La intervención militar autorizada de las Naciones Unidas en Libia: ¿un precedente de la "responsabilidad de proteger"?

En febrero de 2011 surgió el conflicto libio que generó una intervención internacional intensiva y amplia de las Naciones Unidas, que impuso sanciones y autorizó el empleo de la fuerza contra el régimen de gobierno libio, en aras de la «responsabilidad de proteger». El presente trabajo examinará, desde la perspectiva del derecho internacional público, el mecanismo de sanciones de las Naciones Unidas, sus características y el concepto de la «responsabilidad de proteger» y su papel dentro del sistema de sanciones del Consejo de Seguridad y la cuestión de la conformidad de las sanciones con la Carta y el derecho internacional.

Status of Forces and Criminal Jurisdiction

This article examines the legal status of armed forces present in friendly foreign territory with a special focus on criminal jurisdiction. Traditionally, this issue has been considered from the perspective of public international law in which immunities play an important role. However, this perspective does not fully cover the criminal jurisdiction provisions in the international agreements dealing with the status of visiting forces (Status of Forces Agreements). This article introduces military operational law as an additional perspective to better understand this specifc approach of Status of Forces Agreements.