Research & publications 2016

On 26 March 2015, a Saudi-led coalition launched ‘Operation Decisive Storm’ on the territory of the Republic of Yemen following a request by that country's beleaguered government. Although it received no prior fiat from the UN Security Council and took place amidst a civil war, the intervention met with approval from numerous States, with only few critical sounds. Closer scrutiny nonetheless reveals that the self-defence justification, which is primarily relied upon, does not provide a convincing legal basis for the operation. Moreover, the intervention is problematical from the perspective of the intervention by invitation doctrine and undeniably exposes its indeterminacy and proneness to abuse.

On 2 April 2015, the full International Tribunal for the Law of the Sea (ITLOS) rendered its first advisory opinion in reply to a request of the Sub-Regional Fisheries Commission regarding illegal,  unreported and unregulated fishing. Unlike any other court or tribunal with advisory competence, including the Seabed Disputes Chamber, ITLOS’ advisory jurisdiction is not explicitly enshrined in its constituent instrument, but was rather assertedin the Tribunal’s, homemade, rules of procedure. In spite of strong objections from various states, ITLOS affirmed a broad advisory jurisdiction ratione materiae and personae, and found that there were no compelling reasons to exercise its discretionary power to dismiss the request. The request and the Tribunal’s handling thereof raise interesting questions regarding the opportunities and risks inherent to, and the outer limits of, the advisory jurisdiction of international courts and tribunals. This contribution takes alook at the advisory jurisdiction of the full Tribunal, having regard to the experiences of other international courts and tribunals.

With the fast rising sector of deep seabed mining, and the increasing number of exploration contracts in the international area of the deep seabed, the International Seabed Authority (ISA) is urged to adopt the exploitation regulations for its Mining Code, which will include processes and procedures for environmental impact assessment (EIA). While trying to put in place such a mechanism, the ISA will be confronted with key challenges due to its structure and decision-making process as an international organisation. This paper introduces the legal grounds and implementation issues of two elements that can be identified as good practice for EIA: the review by independent experts and the participation of the public.

(2016) In Ius Comparatum : Global Studies in Comparative Law 14. p.125-151.

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.

The history of the law of nations is generally seen as a synonym for the history of the laws of war. Yet, a strictly bilateral perspective can distort our interpretation of early modern diplomacy. The Peace of Utrecht (11 April 1713) inaugurated an era of relative stability in the European state system, based on balance-of-power politics and anti-hegemonic legal argumentation. Incidental conflicts ought to be interpreted against this background. Declarations of war issued in 1718, 1719 and 1733 during the War of the Quadruple Alliance and the Polish Succession should not be read as doctrinal surrogates for trials between two parties, but as manifestos in a European arena.

The development of the Common European Asylum System (CEAS) has often revealed the tight interrelation between refugee law, humanitarian law and international criminal law. It has been argued that the latter bodies of law have, infact, played a major role in the development of most key concept of the European Union asylum acquis.

Drawing from the judgment issued by the Court of Justice of the European Union (CJEU) in Diakite, this article aims to prove that this assumption is not always true, especially with reference to the interpretation of specific concepts of international humanitarian law (IHL) and, in particular, the controversial notion of ‘internal armed conflict’. In tackling the sensitive issue of clarifying the meaning of ‘internal armed conflict’ in order to investigate the grounds to warrant subsidiary protection under the Qualification Directive, the Court provided an autonomous interpretation that goes beyond IHL, thus offering another occasion to investigate the interrelation between international law and the EU legal order.

While contributing to the ongoing debate on the relationship between international law and theEUlegal order, the article will consider the impact of the Court’s reasoning on the EU asylum acquis, and will consider whether disconnecting the Qualification Directive from IHL, instead of producing further fragmentation of international law, may contribute to its defragmentation, conceived of as a harmonic co-ordination of different branches of law.

In the last twenty years the biofuels industry has developed rapidly in many regions of the world. Drawing on a range of disciplines, the contributors examine the roles of the public and private sectors in the governance of biofuels.
They discuss topics such as sustainability and biofuels, and provide a critical review of regulatory regimes for biofuels. They conclude by proposing recommendations for more effective and efficient biofuel policies.
Academics working in the area of renewable energy and students in environmental law will find this book to be of interest. It will also be of use to policy makers around the world looking to learn from various existing regimes.

The latest issue (3.1) of the Journal on the Use of Force and International Law is now available online. The issue includes, inter alia, contributions by Cóman Kenny, Olivia Flasch, Laurie O’Connor, and Max Byrne. The issue also features the latest Digest of State Practice, covering the period 1 July – 31 December 2015, edited by GRILI members Tom Ruys and Luca Ferro, and by Nele Verlinden.

Detailed information on the upcoming two-day international conference - programme, venue, and registration link - can be found in the attached flyer!

This article deals with the problem of combating international crime related to violence at sea. The question addressed is whether, according to public international law, all violent acts in the maritime domain, such as maritime piracy, drug trafficking, human trafficking and maritime terrorism, can be combined into one legal concept. In order to answer this question, this article takes the traditional notion of “piracy” in the sense used in the 1982 Law of the Sea Convention and explores the possibility of the notion being extended to encompass the other forms of crime to a concept of “universal maritime crime”. Jurisdictional issues, the difficulties of incorporating the resulting concept into domestic criminal legislation and challenges related to the prosecution of alleged criminals, such as due process and human rights issues, are also considered.

The Belgian MPA designation process started in 1999, a journey that was characterized by several conflicts related to the multi-level government system in Belgium and obstacles, e.g. the de-designation of the Special Area of Conservation (SAC) 'Vlakte van de Raan' in 2008. On the other hand a number of successful events could be noted as well, e.g. the designation of three Special Protection Areas (SPAs) in 2005 in front of the three marine harbors, and the extension of the SAC 'Trapegeer-Stroombank' (designated in 2005) to an area >30% of the BPNS surface in 2012 (now renamed to SAC 'Vlaamse Banken'). The most important aspects that contributed to the successful designation of these MPAs in the BPNS were (1) the appointment of a minister of the North Sea in 2003 (and 2011), who was dedicated and specifically mandated to coordinate all federal North Sea matters (thus excluding fisheries); (2) the growing awareness of the need for nature conservation through different EU Directives (e.g. Marine Strategy Framework Directive (MSFD)); and (3) the level of stakeholder and public involvement, especially focusing on transparency throughout the process.

The question whether coexistence of marine renewable energy (MRE) projects and marine protected areas (MPAs) is a common spatial policy in Europe and how a number of factors can affect it, has been addressed by empirical research undertaken in eleven European marine areas. Policy drivers and objectives that are assumed to affect coexistence, such as the fulfillment of conservation objectives and the prioritization of other competing marine uses, were scored by experts and predictions were crosschecked with state practice. While in most areas MRE-MPA coexistence is not prohibited by law, practice indicates resistance towards it. Furthermore expert judgment demonstrated that a number of additional factors, such as the lack of suitable space for MRE projects and the uncertainty about the extent of damage by MRE to the MPA, might influence the intentions of the two major parties involved (i.e. the MRE developer and the MPA authority) to pursue or avoid coexistence. Based on these findings, the interactions of these two players are further interpreted, their policy implications are discussed, while the need towards efficient, fair and acceptable MRE-MPA coexistence is highlighted.

The judgment of the European Court of Human Rights (ECtHR) in Özel v. Turkey is consistent with its established case law on interferences with European Convention on Human Rights and Fundamental Freedoms in which private actors are involved.1 By delineating the obligation of states to protect their people against human rights violations by private actors, the Court’s jurisprudence has contributed to the global debate on business and human rights. Nevertheless, the judgment in Özel v. Turkey is disappointing in that the Court decided not to discuss the actual impact of human rights on companies. In times of vigorous and divisive debates about the role of international law in ensuring respect for human rights by companies, the ECtHR should not dodge controversies but lead the way.

Book Review: Agression Against Ukraine: Territory, Responsibility, and International Law. By Thomas D. Grant. New York: Palgrave Macmillan, 2015. Pp. xxx, 283. Index. $105.50, £68.

Biodiversity offsets have emerged as one of the most pivotal policy approaches to algin economic developments across many jurisdictions, including the European Union. However, recent case law developments within the EU have considerably limited the leeway for using biodiversity offsets within the context of EU protected sites. In its recent rulings, the CJEU consistently underlined the preventative nature of the protection duties enshrined in the EU Habitats Directive, thereby excluding offsets a generic instrument to facilitate harmful project development within the context of EU protected sites. In this paper the pros and cons of the allegedly strict stance of the CJEU are outlined and discussed against the backdrop of the key challenges in the context of No Net Loss-policies.

Developments in the international arena have led to the widespread acceptance of the relevance and continued applicability of international human rights law (IHRL) during armed conflict, raising questions as to its relationship with international humanitarian law (IHL). These questions have become increasingly pressing in light of the expanding extraterritorial application of human rights in recent case law. A closer look at State practice and jurisprudence nonetheless reveals that there is no common approach to managing the co-application of IHL and IHRL. Traditionally, the lex specialis principle has been used to resolve any issues relating to the concurrent application of both bodies of law. Yet, more recently, Courts and legal experts alike have begun looking for alternative methods to translate the interplay between IHL and IHRL into practice. This casts doubts over the continued relevance and adequacy of the lex specialis principle as a one-size-fits-all solution ; at the same time, it remains unclear whether any of the alternative approaches can provide an adequate answer to the IHL/IHRL conundrum. This paper will therefore examine whether the practical challenges in implementing the principle, as identified in legal discourse, justify discarding it and whether the suggested alternative options succeed where lex specialis supposedly fails. Throughout and where necessary, the law and practice relating to internment during international military operations will serve as illustration.

The latest issue (3.2) of the Journal on the Use of Force and International Law is now available online. The issue includes an editorial comment by Tom Ruys; op-eds on the Joint Committee Drones Report by Christian Henderson, Christine Gray, Mary Ellen O'Connell, Nigel D White, Karine Bannelier-Christakis, and Susan Breau; as well as articles by Sean Richmond and Sina Etezazian. The issue also features the latest Digest of State Practice, covering the period 1 January - 30 June 2016, edited by GRILI members Tom Ruys and Luca Ferro, and by Nele Verlinden (KU Leuven).