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Lecture 4

Vienna Convention on Diplomatic Relations (1961) Is Customary International Law Regulates the establishment of bilateral diplomatic missions to represent the interests of a sending state and protect its nationals Concerns the privileges and immunities granted to those missions and their staff necessary for them to carry out their work (of representing their state)

Very important! Diplomacy is how states communicate

Members of the mission Head of mission; must be expressly accepted by receiving state + family Diplomatic staff + family Administrative & Technical staff + family Service staff Not necessary, besides HoM, to notify receiving state for immunity to apply Immunity for diplomatic and A&T staff from criminal jurisdiction is absolute; person is inviolable.

Personal inviolability No arrest or detention, unless a danger to themselves or others (but certainly no charges)

Receiving state must take ‘all appropriate steps’ to protect person, freedom and dignity of diplomats

Private residence is also inviolable

Inviolability of private papers, correspondence and property

Immunity from giving evidence

Exemptions to inviolability in respect to certain civil proceedings

Immunity can be waived… it is not ‘personal’

Commencement and termination Privileges and immunities apply from moment of entry to begin post (if already there, notification to Foreign Office) On ending of post, termination of privileges and immunities occur on final departure from receiving state Diplomats given a reasonable length of time to depart Immunity continues for all acts performed in exercise of official function

Premises of the Mission Defined, in Article 1, as including all buildings and lands used for the purpose of the mission, including residence of the Head of Mission, irrespective of whether the property is leased or owned Premises of the Mission are inviolable (Art. 22(1)) Inviolability is absolute:

No official of the receiving state can enter e.g. Police officers

No service of legal process

Immunity from jurisdiction

Includes means of transport e.g. the ambassador’s car

Receiving state must take ‘all appropriate steps’ to protect the premises against intrusion and damage by third parties: Art 22(2). In practice, liability is absolute i.e. pays compensation even where not at fault

Official Correspondence Receiving state must permit and guarantee ‘free communication’ for all official purposes Rules on Official Correspondence All correspondence relating to the mission and its functions is inviolable (Art. 27(1)) i.e. it cannot be opened or read or examined

A final exception is wars of national liberation i.e. the use of force related to self-determination. But this is complicated and not accepted by all, particularly Western, states.

Diplomatic Bag Traditionally a bag, but can also be a crate or a freight container Sending state required to include only ‘diplomatic documents or articles intended for official use’ i.e. not guns, drugs or people But, the fact that a bag contains prohibited items does not affect its legal status The diplomatic bag is inviolable i.e. it cannot be opened or its passage impeded

Unless, in most extreme circumstances, that national security is threatened or human life is at risk

Easy way out

Can Scan the diplomatic bag, where:

Reasonable suspicions exist that the bag is being used for prohibited reasons The scan is not intrusive and does not reveal the detailed contents of the bag

However, even if scan reveals illegal content, host state not entitled to open the bag or delay it

Instead, must notify the sending state and ask them to withdraw/ accept it back

If they refuse, the bag continues on its journey.

Obligations of mission to sending state Duty to respect the laws of the land Must not interfere in internal affairs of receiving state Officially business must be conducted via the foreign ministry Mission premises must not be used for any purpose incompatible with the official function of the mission e.g. commercial purposes Breaching any of these obligations does not affect enjoyment of privileges and immunities – they are absolute!

Diplomatic Asylum To be distinguished from asylum and refugee law Age-old practice to evade the authorities of the receiving state No legal right to grant diplomatic asylum or to request it (i.e. diplomatic asylum is not covered by the 1961 Vienna Convention); maybe be regional custom in S. America In fact, granting diplomatic asylum violates the obligations of the diplomatic mission to respect local laws and not to interfere in the sovereignty of the host state (Political) picture is complicated where the human rights of the individual concerned are at stake

Sanctions Governed by the Rules on State Responsibility

Under Rules on Diplomatic Relations:


Formal protest

Persona non grata / expulsion of diplomats

Breaking off of diplomatic relations

Non-reciprocity i.e. you invade my premises, I invade yours

AND, you invade their premises, we invade yours

Lecture 5: State Responsibility & Peaceful Settlement of Disputes

State responsibility grown up out of the unlawful treatment of aliens. Peaceful settlement of disputes is a hugely

important area of law, as it allows states to resolve their disputes without resorting to force.

State Responsibility 2º rules: concern when a state incurs responsibility and what the consequences are General rules: individual regimes often have own rules (e.g. WTO very detailed rules) Internal law is no excuse 2001 ILC Draft Articles on State Responsibility Not yet law, but largely reflect CIL. These are secondary rules of int law: they tell you when a state has breached an international obligation and what happens when they do. These are general rules, which means that where treaties or charters of international organisations lay down specific rules (lex specialis), these rules take priority e.g. rules on countermeasures under the WTO regime; or settlement of disputes under the Law of the Sea Convention.

To whom the obligation is owed Obligations are owed to other states Normally function as bilateral obligation, even in a multilateral treaty But, obligations can also be owed to the international community (erga omnes): Art. 48

When is an act wrongful?

Article 2:

  • a) is attributable to the State

  • b) constitutes a breach of an international obligation

All wrongful acts entail responsibility/ liability (Art 1)


Whether an act is wrongful is determined by international law (Art 3)

For an obligation to be breached, that obligation must have existed at the time of the alleged breach (Art

A breach can be an act or an omission i.e. a failure to act

Where a state aids, assists or coerces another state to commit a wrongful act (Art 16-18)

E.g. has a treaty entered into force? Was there rule of CIL existent at the time of the breach e.g. the

prohibition on the use of force? Note: serious breaches of ius cogens : no concept of international crimes (ex-Art 19), but ius cogens breaches treated separately. A breach is serious if it involves a gross or systematic breach. Consequences? States are obliged to cooperate to bring such a breach to an end by any means lawful; no state may recognise a situation created by such a breach as lawful e.g. Iraq’s invasion of Kuwait.

Attribution: is responsibility of a state if…

Committed by an organ of the state (Art 4); or by persons exercising elements of governmental authority (Art 5)

An organ is legislative, judicial, executive or any other functions of the state. Whether something is an organ is independent of national law; i.e. out-sourcing the functions of the state will not remove liability e.g. privately-run prisons or police forces.

Officials act in excess of their authority (ultra vires) but connected to their official function (where they are ‘cloaked with governmental authority’) (Art 7)

US vs Mexico is a classic case

Wrongful conduct is directed or controlled by a state (Art 8) e.g. Nicaragua case; effective control test.

ICTY created overall control test, where funding, backing etc. is enough ICJ has confirmed only effective control test! Conduct is carried out in absence of official authorities (Art 9) Where a revolutionary movement becomes the new government (Art 10) Where a state nonetheless acknowledges and adopts the wrongful conduct (Art 11) e.g. Iran hostages case

Gadhafi claimed responsibility for terrorists attacks they had nothing to do with

Yeager v. Iran: actions of individuals can incur responsibility where they are in fact exercising govt authority in the absence of official authorities e.g. due to their total or partial collapse; and where there is a need for such functions to be carried out e.g. law & order functions

Non-state actors incur liability

Circumstances precluding wrongfulness Consent (Art 20)

Self-defence (Art 21) Countermeasures (Art 22)

If they fit within the rules of countermeasures Force majeure (Art 23)

Force majeure = an irresistible force or unforeseen event which makes fulfilment of an obligation materially impossible e.g. an earthquake. It does not apply where the state concerned brought about the event or where it had already accepted liability for such a situation. Distress (Art 24) about immediate action necessary to save lives e.g. entering the territorial waters of another state or their territory in order to assist a sinking ship or plane crash survivors Necessity (Art 25): a grave and imminent peril

Act against something that endangers a State Compliance with peremptory norms (Art 26)

Consequences of a wrongful act Cessation and non-repetition (Art 30)

Full reparation for injury, whether material or moral (Art 31)

Reparation consists of:



Satisfaction: acknowledge you have committed a wrongful act and apologize

* unless not materially possible or where the burden is out of all proportion to injury

Countermeasures IL is self-enforcing

Are limited to the non-performance of obligations owed towards the breaching state (Art 49 DASR)


i.e. cannot involve force!

Also cannot affect obligations in relation to human rights; of a humanitarian character; or of jus cogens

obligations; or affect diplomatic immunity Must be proportional to the injury suffered

Can only follow the refusal of breaching state to desist action + notification of intention to use countermeasures

After notification, wait reasonable time to see if state starts complying Must cease when breaching action stops or where arbitration agreed

Peaceful Settlement of Disputes

Chapter V: Organisation of SC Art 2(3) UN Charter: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Art 2(4) UN Charter: prohibition on use of force

i.e. states must settle their dispute peacefully!

Chapter VI Security Council: maintenance of international peace and security Can ‘call upon’ states to settle their disputes; i.e. ask nicely May investigate disputes that may threaten int p&s Disputes that cannot be resolved by peaceful means shall be referred to the Security Council for recommendations Role of ICJ SC will take action where it considers the dispute a threat to int p&s A state does not have to agree to any kind of settlement, but if it does: bound by the outcome

Forms of Settlement We’re talking about legal disputes, not political disputes (although of course everything can be rendered into a legal question e.g. Falkland Islands/ Malvinas)

Negotiations and conciliation



Compulsory binding settlement: requires mutual consent


Special tribunals e.g. Iran-US Claims Tribunals

Permanent Court of Arbitration


Admissibility Criteria When can a tribunal hear a case? Tribunal must have jurisdiction:

Consent of state parties concerned Jurisdiction ratio temporis: jurisdiction not over acts committed before certain date

Legal interest i.e. the claimant party must be injured

Exhaustion of local remedies/ nationality rule

Admissibility criteria are often laid down in treaties establishing arbitration;

Where not, the tribunal is empowered to establish its own rules e.g. ICJ

ICJ: composition and jurisdiction Principle judicial organ of the UN; replaced PCIJ of LoN Permanent court; independent of the Security Council cf ICTY, ICTR 15 judges elected for 9 years, representing geographical and legal divisions + always a PM judge

States must consent to jurisdiction of ICJ:

by compulsory declaration

Can be withdrawn Case-by-case basis

Jurisdiction of ICJ Jurisdiction is based upon consent:


Can sign up to compulsory jurisdiction

Can accept treaty-based jurisdiction

Can accept jurisdiction on an ad hoc basis (including forum prorogatum)

States who accept compulsory jurisdiction often enter limiting clauses

= jurisdiction of ICJ is a complicated business!

e.g. blanket reservations e.g. not be a party with a party who has not also accepted compulsory jurisdiction. Or not under multilateral treaties with American states unless all state parties are also parties to the case. Or v specific e.g. Canada and environmental provisions.

ICJ: procedure & enforcement Provisional Measures to protect the rights of parties prior to settlement e.g. La Grand. Such measures are binding. Written memorials; oral hearings Third party intervention, where interest also affected Judgments are final i.e. no possibility of appeal Compliance is compulsory UN bodies may request Advisory Opinions on a point of law; states may intervene but not make a request

Lecture 6: Use of Force & the Law of Armed Conflicts

Centrality of this topic to the purpose of international law: Grotius called his seminal work ‘On the Law of War and Peace’

Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.”

Provision is of universal validity as a rule of customary international law

Constitutes a norm ius cogens

A breach = crime of aggression

Unpacking Article 2(4) ‘the threat or use of force’ i.e. not only use of force is prohibited use of force: not only war is prohibited = much broader scope

‘in their internal relations’/ ‘against the territorial integrity or political independence of States’

not prohibiting internal use of force

not only territorial integrity/ political independence e.g. Corfu Channel case Strict interpretation of Article 2(4) most likely

Exception 1: SC authorisation

UN Charter, chapter VII, Article 42:

‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to restore international peace and security’. ‘all necessary means’ phrase

SC does not have to try alternative measures first

In practice, it does try alternatives first

Increasingly, since 1990, authorised peace-keeping missions to take ‘all necessary means’ to achieve their mission goals

Exception 2: Self-defence Self-defence is both a treaty right and customary international law:

Article 51 UN Charter: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN, until the Security Council has taken the measures necessary to maintain international peace and security’ Caroline case (1841) Only to repel attack

Must be necessary AND proportional

Anticipatory self-defence? ‘if an armed attack occurs’

General principle that exceptions should be narrowly interpreted

Plus, v little state practice for anticipatory self-defence as states recognised the danger of it for

escalation e.g. Israel bombing of Iraqi nuclear reactor in 1981. An ‘inherent right’, so Art 51 does not affect the customary right

Attack need not be by another State

Collective defence allowed e.g. NATO

The Caroline case For self-defence to be lawful, there must be:

‘a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation [and involving] nothing unreasonable or excessive’ = response may be to an imminent attack. But, that response must be necessary, limited, reasonable and proportionate. The difficulty is in knowing what these mean in a given case…

Excetion 3: Humanitarian Intervention/R2P Humanitarian intervention = use of force for humanitarian purposes e.g. to protect civilians from crimes against humanity, that is neither approved by the SC nor falls under self-defence i.e. alleged to be a new exception

R2P is a similar idea

Best known example is NATO action in Kosovo: debate is bitter and on-going

Safest interpretation is that such action may be morally necessary but remains illegal

A final exception is wars of national liberation i.e. the use of force related to self-determination. But this is complicated and not accepted by all, particularly Western, states.

Law or Armed Conflict Independent of ius ad bellum Complex web of treaties, customary international law, general principles and ius cogens norms Does not require war to be declared but applies to situations of ‘armed conflict’ Does distinguish between situations of international conflict and internal conflict IHL applies primarily between ‘High Contracting Parties’ i.e. STATES One of oldest areas of international law & rules limiting action in warfare are even older: dating back to the code of chivalry. Role of ICRC

Purpose of IHL To create binding limits to what can be done in situations of armed conflict i.e. to minimise unnecessary suffering Or, in the words of the Martens Clause, ‘inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.’ Because of purpose, IHL is non-reciprocal But reprisals are allowed in order to ensure compliance and where they are proportionate and do not violate civilian inviolability e.g. gas attacks in WWII.

Sources of IHL Hague Treaties of 19 th and early 20 th century Four Geneva Conventions (1949)

Additional Protocols I & II (1977) Customary international law: be careful! ICRC is not a source

Scope: IHL regulates… Who or what is protected What kind of protection they or it requires in different types of situations Types of weapons

Amount of force that can be used


Leading Principle(s)… The means of warfare are limited by the dictates of humanity: no unnecessary suffering There is a fundamental distinction between combatant and non-combatant (civilian inviolability)


Civilians must not be the subjects of direct attack

Civilian objects must not be the subject of direct attack

Where combatants lay down arms, they become non-combatants and are protected Means must be proportionate to military goal

Combatants and “unlawful combatants”

Combatants are:

Members of the armed forces of a Party to the conflict, inc voluntary corps or militia

Members of other groups belonging to a Party to the conflict, inc. organized resistance movement, where they fulfil the following criteria:

Being commanded by a person responsible for his subordinates

Having a fixed distinctive sign recognizable at a distance

Carrying arms openly

Conducting their operations in accordance with the laws and customs of war

Persons who accompany the armed forces e.g. civilian members of aircraft crews, supply

But not ‘terrorists’ i.e suicide-bombers

contractors Inhabitants of a non-occupied territory who spontaneously take up arms to resist invading

forces, provided they carry arms openly and respect the laws of war Therefore, guerrilla fighters are included, where they carry their arms openly and meet other criteria e.g.


However, where someone is not a combatant under criteria above, they are a non-combatant

There is no such thing as an unlawful combatant under IHL

When is a civilian a civilian? A civilian is anyone who is not a combatant A civilian is someone who takes an active part in hostilities but not at that moment e.g. a bomb-maker at home having dinner with his family or walking his children to school Civilians can of course be the victims of military attack, as long as the attack is not deliberate and where the death count is not disproportionate to the military means to be achieved i.e. collateral damage.

Framing a conflict Most IHL applies only in situations of international armed conflict Protocol II: but limited to groups that exercise control over territory and are highly organised

Wars against concepts e.g. drugs or terror Framing a conflict as a war against something rather than human beings appears to justify the legal black-hole that such situations often become e.g. kidnapping of DEA agents. Or lack of human rights norms and lack of IHL application. Those involved are seen as being outside of humanity and therefore not worthy of basic humanitarian protections.


Can activate right to self-defence; but are not bound by Art. 2(4) No matter the identity of the attacker, the rules on self-defence remain the same i.e. attack must be imminent and response must be proportional.

No established definition: focus instead on specific acts of terror or financing of terrorism Acts of terror can give rise to state responsibility Terrorists not protected by full body of IHL

BUT (some) protection for all Even terrorists…. Common Article 3 and Art. 4 Protocol II (but covers only civilians and hors de combat i.e. not combatants) Art. 43(4) Protocol I protects combatants that don’t meet criteria Martens savings clause covers all

Human rights law applies

Lecture 7: International Organisations

International Organisations Created by states to serve specific functions by co-ordinating state co-operation e.g. ITU or WHO Membership limited to states Normally established by treaty Financed by members International Legal Personality separate from members More than 500 IOs, ranging from UN to UN specalized agencies e.g. WHO, ILO, UNESCO, WIPO, IMO etc, to regional political bodies e.g. EU, OAS, OAU, ASEAN, Arab League, the Commonwealth; military alliances e.g. OSCE, NATO

IO Legal Personality Limited personality (cf states) i.e. in respect of certain international rights and obligations necessary to serve functions Limitations normally laid down in founding treaty “the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community” (Reparation for Injuries


States have unlimited personality; IOs have personality only in respect of the functions that they were

created to serve. How do you know what their rights and obligations are? Depends upon the needs of the international community – see needs of the UN in RoI. E.g. UN can authorise the use of military force but the WTO cannot. IOs act ultra vires if they act beyond conferred authority


Implied powers = those powers that are necessary for the most efficient performance of its functions i.e.

powers are inferred from its function EU is sui generic

Immunities and Priviledges & Liability

Immunities and privileges relate to functional need; usually provided in founding treaty

Involves various levels of immunity from legal proceedings, normally only related to official function

Usually v. favourable financial privileges

Member states are not liable for actions of IOs, either domestically or internationally

Can cause problems e.g. Tin Council collapse Tin Council: question concerned whether the members were liable for the debts that

the Tin Council ran up on the London Metals Exchange. House of Lords ruled that they were not. Flows from fact of international personality. Only most senior officials are likely to have full immunity,

The UN

but it may be offered by State of which official is a national e.g. OSCE. 1975 Vienna Convention on the Representation of States in their Relations with IOs that lays down rules on immunities and privileges that go further than customary law established by 1946 Convention on Privileges and Immunities of the UN: not yet in force.

Established by the UN Charter in 1945; now has some 193 members

Purposes of the UN in Art 1 UN Charter:

To maintain international peace and security

Difficulties of interpretation of the UN Charter: 4 official versions (English, Russian, French, Chinese)

To develop friendly relations among nations

To achieve international co-operation in solving international problems of an economic, social,

cultural or humanitarian character, and in promoting respect for human rights To be a centre for harmonizing action in respect of achievement of above goals.

and TP in both English and French, although neither was the first language of most delegates. Misunderstanding inevitable. In order to understand the powers of the UN, need to look at its purposes: REMEMBER – implied powers.

Express limitation

Article 2(7): “Nothing in this Charter shall authorize the UN to intervene in matters which are

essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement …; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” Unlikely to be seen as interference if involves a breach of international law e.g. a gross violation of

human rights Express exception for Chapter VII actions


Open only to (peace-loving) states

Peace-loving not taken too seriously e.g. US and North Korea! Membership taken as evidence

of being a state Must be recommended by Security Council to General Assembly, who must be in favour by a two-

thirds majority Non-members can have observer status at GA e.g. Palestine, Vatican, Switzerland

Members that are subject of dispute may have voting rights suspended; can be expelled for consistent

Charter violations Is possible to withdraw

Members pay fees for UN operations

Security Council 15 Members: P5 + 10 for 2 years (5 for African & Asian states; 2 for S. American; 1 for CEE & 2 for WEOS)

SC has primary responsibility for the maintenance of international peace and security; in carrying out its

duties here, the SC acts on behalf of all members (Art. 24) Members must carry out decisions of the SC (Art. 25) = the SC has power to take legally binding

decisions and Members have a legal obligation to obey. These obligations override all other international obligations: Art. 103 Procedure


Each members has 1 vote

Decision on procedural matters is by majority + 1 i.e. 9 votes; no veto

In practice, ‘concurring vote’ means that they must vote against it .e.g P5 cannot

Decisions on substance is by majority + 1 but must include ‘concurring vote’ of all P5


boycott SC meetings as USSR tried in 1950s. Collective veto possible i.e. by 8 non-permanent members; therefore P5 must carry other

members Veto rarely used


Because of working methods (UN Green Room)


Members involved under Chapter VI should not vote; doesn’t affect actions under Chapter VII

Powers of the SC Chapter VI: power to settle disputes – decisions not legally binding

Chapter VII: power to authorize military action (art. 42) when acting to maintain international peace and security

Total discretion to determine when a situation threatens int. peace and security (art. 39)

Total discretion = selective interest of the SC: Libya but not Israel or Syria. Forceful action against Iraq but not against Israel. A political decision not a legal one. E.g. could decide that uncertainty over Kosovo constitutes such a threat. SC recommends, demands, prohibits or authorizes Measures not limited by wording of art. 41

Art 41 can include sanctions, trade embargoes, no-fly zones, diplomatic sanctions, monitoring regimes, peace-keeping, border change/ demarcation, est of ad hoc courts. States must obey, as falls under Chapter VII.

Unlimited powers? Seems unlikely e.g. cannot act ultra vires and probably should not breach ius cogens

But decisions are not subject to review Can address entities other than states e.g. Mr. Kadi SC powers pretty much cover all the bases.

General Assembly

All members represented; 1 vote; no vetoes (normally, decisions by two-thirds of those present)

May discuss any matter within scope of Charter

Main purpose is to promote international co-operation in economic, social, cultural, educational and

health fields + promote human rights Binding power to set UN budget + determine contribution of each member

Rest of decisions are recommendations only, but can have significant political effect

Cannot consider a situation of which the SC is seized

Other UN bodies Secretariat: 14.000+ people, headed by Secretary-General UNSG is chief administrative officer, NOT CEO. SG is appointed by two-thirds majority in GA from a shortlist approved by the SC. States do not want someone who will criticise them! Secretariat is independent of any government

ECOSOC (54 members elected by GA): is to promote co-operation in areas of economic, social, cultural and humanitarian areas + human rights Wide terms of reference but cannot take binding decisions Co-ordinates actions of specialized agencies: most cannot take decisions binding upon members

Specialised agencies = World Bank group e.g. IMF, IBRD + ILO, FAO, UNESCO and WHO. WHO can make binding resolutions in some areas.

International Economic Law Hugely complex area Customary law more or less irrelevant here, as states always had freedom to regulate their economic and monetary affairs, both internally and externally IEL based largely on reciprocal international treaties (bilateral and multilateral) But, a sub-set of public international law, so must play by general rules e.g. state sovereignty, use of force, treatment of aliens etc

Purpose of IEL: Bretton Woods

System established in 1944 at Bretton Woods, to:

Reduce tariffs and barriers to trade

Create an international framework to minimize conflicts Economic conflicts were widely felt to have played major part in worlds wars of first part of century.

Consisted in IMF, WB and GATT

IMF: to facilitate the expansion and balanced growth of int trade by facilitating the exchange of goods, services and capital among countries: has regulatory and supervisory functions in relation to exchange rates, systems of payments and transfers + assists countries with balance of payment deficits.

WB: assits with construction and development by lending money; promotes private foreign investment by guaranteeing or providing loans GATT: multilateral treaty to establish general principles for the liberalisation of trade by reducing custom barriers + other barriers and by eliminating discriminatory treatment: MFN is central principle (no discrimination between members) – are exceptions.

GATT replaced in 1995 with WTO (1994 Marrakesh Agreement) WTO came into being because of difficulties in getting new substantive agreements on reducing barriers + dispute settlement needed.

Everyday stuff of trade regulated by BITs


Purpose is to protect foreign investment by non-state entities

Of course, the argument is that by protecting foreign investment it also promotes it. Generally

between developed and developing states Between states, protecting investments made by nationals of one state investing in the territory of the

other Generally establish MFN conditions and protect against expropriation

Often allow for the free transfer abroad of earnings and capital

Most importantly, they regulate disputes – normally providing for international arbitration

Mean that the investor doesn’t have to exhaust domestic remedies or is subject to law of national courts.


Made up of a series of agreements: GATT, GATS, TRIPS, the Understanding on Rules and Procedures

New negotiations deadlocked since 2001 (Doha round)

Doha was intended to make trade globalistion more inclusive, to spread the benefits more

equitably. It has stalled because developing countries wont back down on agricultural subsidies in the North. Decisions taken by simple majority

Extensive dispute settlement system that controls ability of states to take counter-measures

Power lies in ability to tell states what an acceptable barrier to trade is e.g. environmental measures e.g. turtles or dolphin, or health measures e.g. antibiotic-free meat

Basic Principles Non-discrimination (MFN): must treat all members of WTO equally (although exact requirements differ across agreements)

Exceptions to MFN for developing countries and custom unions. See Wiki page.

Reciprocity: no free-riding

Transparency: members publish openly their trade and customs regulations + annual reports

Binding, enforceable commitments: disputes stay within the system

Exceptions: in cases of emergency or to protect human health and environment (but WTO decides…)

Lecture 8: The Individual in International Law

International Human Rights Law Mixture of treaty and custom norms

Human rights law protects:

Individuals Individual members of minority groups Indigenous peoples Peoples Protection is vertical (not horizontal)

Generations of rights? From primary rights (against genocide) right of development clear air and environment

rights to ridiculous rights (e.g. good sleep) Specialised rights e.g. children or disabled Shift from minority protection to individual protection Concept of individual HR did not exist before 1945


Human rights one of the purposes of the UN Given content in UDHR (1948) Contains both civil & political and economic, cultural & social rights Much of it is custom, but not all Inspiration for regional instruments and specialised treaties Not really IL; moral statement

Human rights treaties International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Cultural & Social Rights (ICESCR) Convention against Torture (CAT) International Convention on the Elimination of All Forms of Racial Discrimination (CERD) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Regional treaties e.g. ECHR, Inter-American Convention, African Charter on Human Rights

Protection Mechanisms Treaty-based oversight committees:

States produce regular reports on compliance; reports reviewed by Committee;

General Comments

recommendations issued Optional individual complaint mechanism

E.g. Human Rights Committee. HR one of the biggest industries

Regional Courts e.g. European Court of Human Rights (ECtHR), African Court of Human Rights, Inter-

American Court of Human Rights UN bodies: Human Rights Council, OHCHR, Special Rapporteurs

Informal mechanisms? E.g. World Bank, Business, WTO, NGOs

More influence sometimes on HR

National courts e.g. U.S. Alien Tort Statute Act

Group rights


Rights of Peoples:


All peoples: self-determination

Some peoples: indigenous groups Minority groups:

INDIVIDUAL members of minority groups Otherwise claim to land: states do not want this

Rights to language, cultural expression etc

Tension between individual and group?

2007 Declaration on the Rights of Indigenous Peoples

Nature of Human Rights Human rights as universal and indivisible? Presupposes a-cultural and a-historical nature Provide moral guarantees for basic needs

Dualism: both symbolic and positive law Empowering symbol, but also positive law when laid down in treaties

Yet, balancing…. Sometimes seen as trump cards

Refugee Law

1951 Refugee Convention:

Applies only to those who fear political persecution, not economic conditions, based on

membership of a particular group Only applies internationally i.e. not to internally displaced persons

Principle of non-refoulement only applies to those who make it to a country

General rule is that must apply in first country of arrival = burden falls primarily on poor

countries Great achievement, but …. + is customary law

International Criminal Law

Obligations as well as rights

War crimes

Creates individual criminal responsibility for:

Crimes against humanity

Genocide Mass murder is not genocide

Aggression Includes command responsibility

Rights to have rights? Very little of human rights law is customary law Human rights law depends largely on states ratifying and implementing treaties (gift from your state) = Human rights depends upon membership in a political community i.e. upon nationality HR not used in national courts Human rights as universal? Not in a legal sense From Alien to Actor? What do human rights depend upon? Are human rights universal only in aspiration? Should they be universal? Neo-colonial accusation…

Lecture 10

What is the European Union? The EU as an actor of IL


IO (with legal personality) of regional integration

The EU as “sui generis” actor of IL



o Intergovernmental and supranational features Similarities with a federal State (i.e. division of competences)

A political internal land external dimension

Supranationalism No grand integrations steps Functionalist, gradualist logic: long-term, step-by-step Continue towards an “ever closer Union” Supranationalis institutions key actors in the integration process Famous figures: Jean Monet, Jacques Delors (President of the European Commission 1985-1994)

Intergovernmentalism Reject powerful European institutions Coordinated cooperation among MS Real powers with MS MS as key actors of the integration process Famous figures: Charles de Gaulle, Margaret Thatcher

The initial reasons and objectives

In the aftermath of WW2


Peace, security, stability


Political cooperation


Economic prosperity

Many sites of International cooperation after WW2

  • - 1945: UN

  • - 1947: GATT

  • - 1948: OEEC/OECD

  • - 1949: NATO

  • - 1949: Council of Europe 1953: The European Convention on Human Rights


Founding fathers EU: Jean Monnet, Robert Schuman, Winston Churchill

Attempts at further political cooperation

  • - 1946: Winston Churchill in Zurich “We must build a kind of the United States of Europe”


  • - European Defence Community (EDC) proposed in 1950


European army


Rejected by the French National Assembly

  • - European Political Community (EPC) proposed in 1952


Negotiations abandoned after EDC failed

The unifying force behind the birth of the EU: Jean Monnet

  • - “Better fight around a table than on a battle-field”

  • - “The sovereign nations of the past can no longer solve the problems of the present”

  • - “There will be no peace in Europe, if the states are reconstituted on the basis of national sovereignty… The countries of Europe are too small to guarantee their peoples the necessary prosperity and social development. The European states must constitute themselves into a federation…”

The Schuman Declaration

  • - Proposed by Robert Schuman on 9 may 1950

  • - Idea: pooling French and German resources on coal and steel to make war between historic rivals not merely unthinkable but impossible

  • - Also: necessary for rebuilding Europe and strong German economy good for Europe

European Coal and Steel Community (ECS)

  • - 1951 by Treaty of Paris


Belgium, France, West-Germany, Italy, the Netherlands, Luxembourg


The first of the European Communities which would ultimately result in EU


Four institutions

European Economic Community (EEC) and Euratom


1957: Treaties of Rome


EEC treaty objectives – economic:


Establish a common market


Approximate the economic policies of MS


Promote harmonious development of economic activities throughout the Community


Increase stability and raise standard of living


Promote closer relations between MS


A number of common policies (e.g. agriculture and fisheries)


Summing up: The Founding Treaties


Three European “Communities” Similar institutions (merged in 1967)



EEC most important


Treaty of Paris founding ECSC, Paris 1951 (expires in 2002)


Treaty of Rome founding EEC, Rome 1957


Euratom Treaty founding Euratom, Rome 1957

Deepening: adding policy areas, more powerful institutional framework Widening: expanding membership



The Treaties




Treaty of Paris


Treaty of Rome


Euratom Treaty


Treaty of Maastricht (EU)




Merger Treaty


Single European Act


Amsterdam Treaty


Nice Treaty


Lisbon Treaty



Currently in force:



Treaty on the European Union (TEU) (=MaastrichtT as amended by AmsterdamT, NiceT & LisbonT)


Treaty on the Functioning of the EU (TFEU) (=Treaty of Rome, renamed and amended)

Single European Act (SEA) 1986



Extended competences (social policy, environment, economic and social cohesion, research and


technological development) More majority voting


Enhanced European Parliament’s power in the legislative procedure


Primary focus: establishing the internal market: a deadline to remove a list of barriers by the 31 January



Internal market: an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured

Treaty of Maastricht (TEU) 1992


Created EU


Institutional change: the 3-pillars structure


Introduced the European Citizenship


Competences in new, non-economic areas, i.e.: culture, research and development, social policy, development, consumer protection, public health etc.


Broader power to the EU Parliament (co-decision)


Timetable and convergence criteria for a single European and Monetary Union and the single currency (euro)

The 3-pillar structure


European Communities (EEC war renamed the EC (supranational))


CFSP (Common Foreign Security Policy (intergovernmental)


JHA/Police & Judicial Cooperation (Justice and Home Affairs was renamed Police and Judicial Cooperation in Criminal Matters (PJCC) (intergovernmental))

The Failed Constitutional Treaty


Objective towards political union


Reforms of powers and institutions, language and symbols


President of the EU, a Foreign Minister


Ratification rejected in French and Dutch referenda (2005)

Treaty of Lisbon 2007


Signed in 2007, entered into force in 2009


Based on constitutional Treaty provisions


3 Pillars structure disappears


TEU + TFEU (new article numbers)


Strengthened the role of the EU Parliament


Charter on Fundamental Rights legally binding


Broader Union’s competences


Introduced: the European External Action Service (EEAS), including the High Representative for


Foreign Affairs and Security Policy

Current agenda


Candidate countries:


Former Yugoslav Republic of Macedonia










Application for membership receiver Albania



Potential candidate countries



Bosnia and Herzegovina


Operationalizing enlargement


From process… Intergovernmental character



MS control


… to policy




Codification and elaboration of accession conditions

Monitoring and evaluation of candidate countries

The use of conditionality

Accession conditions


The Copenhagen criteria (EC 1993)


Political, Economic, Legal


Today: Art. 49 TEU

Lecture 11 (NOTES) EU Law – Session 11: The Union institutions and law-making in the EU

Introductory remarks:

Particularly since the 1990s, rise of agencies in the EU.

No traditional separation of power:

Usually western democracies embody separation of powers. This is not the case in the EU. E.g. European Commission. Has some legislative, some judiciary, some administrative powers. There is still balance of institutional powers, since no one institution holds all the, for example, judiciary power.

Different institutions represent different interests; either embody interinstitutionalism or supranationalism AND embody different interest.

!! There is no clear division of tasks between the two treaties (TEU, TFEU); need to look at both.

The key players of the “institutional triangle”

The European Parliament:

  • - Voice of the people

  • - President of the European Parliament: Martin Schulz (Germany)

  • - Initially: as European Assembly and very small powers (only advisory)

  • - Changed: now co-legislator

  • - Party groups not national, but transnational

The European Commission

  • - Common (Union) voice

  • - President: Jean-Claude Juncker (Luxembourg)

  • - One commissioner of each MS: 28 commissioners Including, the president, the High Representative of the EU for Foreign Affairs and Security



Policy Each commissioner is responsible for his or her own portfolio on certain policy area


There was a proposal to diminish number of commissioner, too many commissioners with the expansion of EU (628). Potential problem for effectiveness of Commission. But countries feared not having a say if they didn’t have a commissioner in the Commission.

  • - And around 23000 civil servants working in Directorate Generals (DGs) presided by individual Commissioners


Each commissioners has its own DG

  • - You could draw parallel to a council composed of ministers in Member States

  • - High Representative of the EU for Foreign Affairs and Security Policy:


Introduced by Lisbon Treaty


Double hat: at the same time one of the Commissioners


Conducting the Union Common Foreign and Security Policy + the Union Security and


Defence Policy Responsible for the relations of EU outside the EU; diplomacy


First: … (UK)


Current: Federica Mogherini (Italy)

  • - President of the European Commission


Powerful, could have a lot to say


Last elections: who would be the president source of controversy


Nominates individual Commissioners

Commissioners proposed by national parliaments


Once proposed, need to be approved by President Decides on its internal organization


Determines portfolios of individual Commissioners

Policy areas are NOT defined in the Treaties

It is the President that decided what DGs there are going to be and what policy areas

Some minor exceptions

E.g. President decided some Commissioners would become vice-presidents of other

Commissioners Decide for example what issues they should pursue first


May request a Commissioner to resign


Lays down guidelines for the working of the Commission


Roving Policy Brief

  • - Term is parallel to term of Parliament

  • - Appointment process:




Appointed for 5 years, renewable

Independent from MS


President of the commission

Proposed by European Council

Elected by EP


President-elect together with the Council and on the basis of suggestions from individual MS


draws up a list of individual Commissioners The College of Commissioners is then approved en bloc – as a whole body – by the EP

  • - Dismissal:



Com president can ask a commissioner to resign


Court of Justice has the power to rule on the compulsory retirement of a Commissioner


Motion of censure

  • - Only institution to initiate legislative procedure

  • - Supranational: represent interests of the Union, not of individual MS

The European Council:

  • - Voice of the Member States

  • - President: Donald Tusk (Poland)

  • - Top political body of EU

  • - 28 Heads of Gov of the MS + President of the European Commission

  • - Decisions taken by consensus

  • - THIS BODY NOT DISCUSSED IN THE TEXTBOOK, but very important, especially since financial crisis.

  • - Formally, no role in legislative procedure. But can instruct its ministers to act in a certain way during the Council of Ministers meeting.

  • - Very intergovernmental: essence of the MS interests

The Council (of Ministers):

  • - Representatives of MS at ministerial level

  • - Always a presidency; rotates equally among MS every 6 months


Main function: deciding its priorities, setting the agenda

The three councils

The Council of Europe: NOT EU INSTIUTION, international organization, protection of HR, based in

Strasbourg. Just a different int. org, EU mandated to become a member of The Council of Europe itself.

European Council: body comprising heads of states

Council (of Ministers): i.e. Council of the European Union. Within legislative procedure, it is the Council that votes. Each of the ministers has ‘a boss’ at home. Each German minister, has Merkel a boss. Internal matter how powerful head of state is.

Lecture 12: The sources of EU Law and the law-making powers of the EU

What is EU law?

  • - Set of principles and rules that regulate the relationship among the EU, its MS and their citizens

  • - Derives from:


International treaties: TEU and TFEU (primary law)


Legal acts of the EU institutions (secondary law)


Judgements of the Court of Justice

  • - EU law is an integral part of national laws! 75% of national legislation influenced by EU law Certain EU law provisions, both primary and secondary law, can be directly invoked in



national courts, even in disputes between private parties

EU primary law

  • - EU treaties Institutional setting of the EU Substantive law (four freedoms/policy areas) Judicial review




  • - Accession Treaties

  • - 37 Protocols (Art 51 TEU)

  • - The Charter of Fundamental Rights

  • - 65 Declarations (not binding)

  • - General Principles of EU law Reference to national constitutions and the European Convention of Human Rights (ECHR)



and its binding force in all MS As general principles of EU law

  • - The Charter of Fundamental Rights Proclaimed in 2000 as not a legally binding instrument


Provided inspiration but did not create obligations


Lisbon Treaty declared raised its status to have “the same legal value as the Treaties”


Limited to EU institutions and MS when they apply/implement EU law

Secondary EU law: legal acts of the EU

  • - Defined in Article 288 TFEU

  • - Adopted under procedures described in Article 289 TFEU (core: OLP)

  • - Binding: regulations, directives, decisions

  • - Non-binding: recommendations, opinions

  • - There may also be unclassifiable acts (sui generis)

  • - Article 288 TFEU is not exhaustive


  • - General application Lay down rules that are binding on everyone


  • - Binding in their entirety

  • - Directly applicable Part of national legal system as soon as they are adopted



No implementation is necessary or allowed

  • - Are meant to ensure uniformity of EU law all over the EU

  • - 31% of secondary law


  • - Not generally applicable Addressed only to MS


  • - Not directly applicable Have to be implemented in a nationl legal order


Before a certain deadline

  • - Not binding in its entirety Binding only as to the result to be achieved



MS choose the form and methods

  • - Intended to give flexibility to MS, to tailor EU law to their specific circumstances

  • - 9% of secondary law


  • - Not generally applicable Binding only on the addressee(s) Normally they specify to whom they are addressed



  • - Binding in their entirety

  • - Directly applicable

  • - 27% of EU secondary law

Hierarchy of norms

  • - Primary law is hierarchically higher than secondary law


Primary law must provide a legal basis to adopt secondary law


Secondary law is based on primary law


Secondary law must comply with primary law

  • - Secondary law can explain and complement primary law

  • - Legality of EU secondary law can be reviewed by the Court of Justice in light of primary law

  • - Article 20 TFEU: Citizenship of the EU


Directive 2004/38 on European citizenship

Competences of the EU

Why is the determination of EU competences important?

  • - Competence: has the EU power to act?

  • - Constitutional reasons:


Transfer of sovereign powers under IL


Scope and extent of powers


Dynamic interpretation of EU competences (competence creep)

  • - Institutional reasons:


Who decides, following what procedures and subject to which constraints

The Principle of Attributed/Conferred Powers Article 5 TEU

  • 1. The limits of Union competences are governed by the principle of conferral

  • 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the MS in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the MS.

    • - Limited not general transfer of competences

    • - EU cannot act beyond the express and implied powers granted by the Treaties

EU Competence – The Lisbon Treaty

  • - Art 2 TFEU

  • - Exclusive Competence: Art 3 TFEU Only the EU can legislate in the area The MS can adopt legally binding acts only if empowered by the EU for the implementation of




EU law Areas (Art 3(1))

Customs Union

Competition rules necessary for the functioning of the internal market

Monetary policy for the Eurozone

The conservation marine biological resources under the common fisheries policy

Common Commercial Policy

  • - Shared competence (Art 4 TFEU)


Both the EU and the MS can act;



MS can act to the extent and so far as the EU has not acted

If the EU takes action, its competence becomes exclusive

Principle of pre-emption


Internal market

  • - Competence to take supportive, coordinating or complementary action The EU has competence to act along the MS but cannot supersede the MS action The EU can only intervene to support, coordinate or complement the action of MS, Consequently, it has no legislative power in these fields and may not interfere in the exercise of these competences reserved for MS Article 6 TFEU: The Union shall have competence to carry out actions to support, coordinate




or supplement the actions of the MS, The areas of such action shall, at European level, be:

Protection and improvement of human health




Education, vocational training, youth and sport

Civil protection

Administrative cooperation

Subsidiarity & Proportionality

  • - Determine whether and how and existing competence should be exercised

  • - Limit the exercise of an existing competence

  • - Art 5 TEU

Principle of Subsidiarity

  • - Article 5(3) TEU: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

  • - Starting point: national action

Principle of Proportionality

  • - Article 5(4) TEU: Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

  • - Often used in practice

    • 1. Suitability test: is the measure suitable for the attainment of the desired objective

    • 2. Necessity test: is the measure necessary to achieve the desired objective? Or can the objective be attained by a less onerous method, less restrictive of the individual’s freedom?

Who safeguards their application?

  • - The institutions of the Union themselves Obligation of the Commission to consult widely


  • - National parliaments Object to Commission’s proposals (Art 6-7 TEU)



Protocol (No. 2) On the Application of the Principles of Subsidiarity and Proportionaility

  • - The Court of Justice


Manifestly inappropriate exercise of discretion

Internal Market Competence

Article 114 TFEU (Ex article 95 TEC)


Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

Article 26 TFEU


The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal

market, in accordance with the relevant provisions of the Treaties.


The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

Lecture 13: Substantive EU Law

Internal Market

Article 3 TEU:


The Union shall establish an internal market. It shall work for the sustainable development of Europe

based on balanced economic growth and price stability, a highly competitive social market economy,

aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. Article 36 TFEU:


The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

Trade barriers

  • - Physical barriers: border stoppages, custom controls, paperwork

  • - Technical barriers: Health and safety standards, consumer and environmental protection, other technical regulation

  • - Fiscal barriers: double taxation, different VAT rates, duties

  • - Distinctly applicable (discriminatory) rules: rules applying differently to domestic vs foreign goods/services/works/capital

  • - Double burden: Rules that need to be complied with in home and host country (content, weight, selling, advertising,…) they can be different in home and host country

Stages of economic integration

  • - Preferential trading area Preferential tariffs for selected goods from participating countries


  • - Free trade area Free movement of goods: no tariffs, quotas and preferences on most (or all) goods and services


traded between participating countries; no common external tariff (EFTA, before EEA, NAFTA)

  • - Customs Union Free trade area within Union + a common external tariff (aim of EEC from the beginning)


  • - Common or single internal market


Customs Unions and free movement of factors of production


Single market: to underline the effort for eradication of physical (borders), technical

(standards) and fiscal (taxes) barriers (deadline set by the SEA – completion by 1992)

  • - Monetary Union


Single market and common currency (EMU – adopted in Maastricht)

  • - Economic Union Single market and common economic, monetary (incl. common currency) and fiscal policies


Methods of integration

  • - Negative integration:


Remove obstacles/barriers to trade among MS


Proceeds through judgments of the Court of Justice in the EU

  • - Mutual recognition: Cassis de Dijon


Accept standard of other MS


Ensuring market access and promoting regulatory diversity

  • - Positive integration Harmonization of legal systems through common (EU) rules Can you identify a legal basis (already discussed) for EU secondary law as an instrument of



positive integration?

Negative integration in the internal market

  • - Free movement of goods Art 30 TFEU: Customs duties on imports and exports … shall be prohibited between MS



Art 34 TFEU: Quantitative restrictions on imports shall be prohibited between MS

Free movement of goods

  • - Customs Union: Art 28-33 TFEU Common Customs Tariff

  • - Prohibition of fiscal/financial restrictions o Tariff barriers Art 30 TFEU Tax barriers Art 110 TFEU no discriminatory taxation


  • - Prohibition of quantitative (non-financial) restrictions Quantitative measures and Regulatory restrictions (MEQR) Art 34-37 TFEU


Common Customs Union

  • - Common Customs Tariff: Common Customs Code Reg 2913/92 The same tariff for regardless of the importing MS Determined on the basis of the third country of origin and the value of the imported good




  • - Art 29 TFEU: Once all import formalities have been complied with and the Common Customs Tariff has been paid, the goods imported from third countries are in free circulation in the MS (= in the internal market)

Tariff barriers: customs duties

  • - Article 28(1) TFEU The Union shall comprise a customs union which shall cover all trade in goods and which shall


involve the prohibition between MS of customs duties on imports and exports and of all

charges having equivalent effect, and the adoption of a common customs tariff in the relations with third countries

  • - Article 30 TFEU


Customs duties on imports and exports and charges having equivalent effect shall be prohibited between MS. This prohibition shall also apply to customs duties of a fiscal nature

Tariff barriers: Charges having equivalent effect (CHEE) = “any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier…”

  • - Per se unlawful; always, no justification

  • - Regardless of the purpose of the charge

  • - Even if it is not discriminatory in effect

Permissible tariff barriers

  • - Case 18/87 Commission v Germany Charged for inspections if inspections required by EU law


Must correspond to value of the service

Tax Barriers: Art 110 TFEU “No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.” MS free to adopt any regime of internal taxation as along as it is applied without discrimination both to domestic and foreign products which are similar For competitive products: no need to equalize taxes but protective intent must be removes

Tariff vs tax barriers

  • - Import charges:


Duties charged as a result of goods crossing a border – at the time of, or on account of


importation Only applies to foreign goods



  • - Tax barriers:


Fiscal policy internal to the State, once goods have entered a MS


Applied to foreign and domestic goods


Discriminatory and protectionist taxes prohibited

Lecture 14:

Quantitative barriers

Non-monetary barriers Art 34 TFEU: “Quantitative restrictions on import and all measures having equivalent effect shall be prohibited between MS”

  • - Art 35 provides exactly the same for exports

  • - Quantitative restrictions = restrictions in numbers Total ban of import/export Import/export quota’s = total ban on import/export once the quota has been achieved In principle prohibited




Unless justification under Art 36 TFEU

Justifications under Article 36 TFEU

  • - Specific grounds provided (closed list)


Public morality


Public policy


Public security


Public health


Cultural heritage


Industrial and commercial property

  • - + proportionality principle

  • - Suitability test: the measure is adequate and appropriate to serve the declared objective

  • - Necessity test: there are no less restrictive measures

MEQR: Measures having equivalent effect to quantitative restriction

  • - 8/74 Dassonville All trading rules Enacted by MS Which are capable of hindering,







Directly or indirectly, Actually or potentially, Intra-Community trade

  • - In principle, prohibited


Exceptions: see following

MEQRs: Dassonville

  • - Discriminatory (distinctly applicable) measures Only affect imported/exported goods = foreign and domestic goods treated differently



In law and fact (de jure discrimination)


Often protectionist


Justification: Art 36 TFEU

  • - Non-discriminatory (indistinctly applicable) measures Imposed on all products regardless of origin = foreign and domestic goods treated equally



In law but different in fact (de facto discrimination)


Rules may be imposed in the general ‘good’


Justification: rule of reason

Discriminatory measures

  • - Import and export licenses “National legislative provisions prohibiting imports and exports without a licence but which in fact are not applied because exemptions are granted from the prohibition and, where this is not so, because the licence is always issued on request” (51-54/71 International Fruit (No.2))


  • - Inspections of imports or exports only (Bouhelier)

  • - Preference or advantage for domestic products (“But National” campaigns: Case 249/81 Commission v Ireland (“buy Irish campaign”)

  • - Designations of quality and/or origin (Case 113/80 Commission v Ireland (1981) ECR 1625 (“Irish souvenirs”))

  • - They can be justified according to article 36 TFEU

Non-discriminatory measures

  • - Cassis de Dijon 1979 (para. 8): “In the absence of common rules … it is for the MS to regulate all matters … on their own territory”

  • - Mutual recognition: a product lawfully produced and marketed in one of the MS must not – without a valid reason – be prevented from being introduced in any other MS other MS cannot request additional requirements Presumption of trust among MS


  • - Rule of reason: justification of non-discriminatory measures Cassis: obstacle to movement (due to different national legislations) must be accepted in so far


as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer


Open list of justifications

Separate from article 36!




Suitability test: appropriateness of the measure


Necessity test: no less restrictive measures available

Indistinctly applicable measures that are selling arrangements

  • - Keck and Mithouard (French prohibition of sale at a loss): “the application to products from other MS of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder, directly or indirectly, actually or potentially, trade between MS withing the meaning of the Dassonville judgement (…) provided that (i) those provisions apply to all affected traders operating within the national territory and provided that (ii) they affect in the same manner, in law and in fact, the marketing of domestic products and those from other MS (para 16)

  • - Distinguish product requirements from selling arrangements

  • - Are these measures selling arrangements?


A rule requiring caloric content information on food products


Labelling of cigarette packages


Opening hours at petrol stations


Television advertising


Ban on sales over the internet


Rules on sales over the internet

 Open list of justifications  Separate from article 36! o +Proportionality! o Suitability test: appropriateness

Lecture 15: The internal market and the free movement of persons

Principle of non-discrimination: Article 18 TFEU

  • - Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited

Personal scope(1): economic activity

  • - Workers (Art 45 TFEU)

  • - Self-Employed (Art 49 TFEU)

  • - Service providers (Art 56 TFEU)

  • - Not defined by the EU Treaty and secondary legislation, but CJEU’s case-law – broad meaning

  • - Defined by EU law only!

Personal scope: “worker”

  • - 66/85 Lawrie-Blum:

  • - Concept of EU law

  • - Objective criteria

  • - Reference to the rights and duties of the person concerned

  • - Three criteria:

    • 1. A certain “settled” period of time


Against renumeration

Breaking the economic nexus

  • - Recognizing the human dimension of free movement of persons:

o Regulation 1612/68 – equal treatment CJEU: broad definition of worker etc. 75/63 Hoekstra v. BBDA (1964): a person who had lost his job, not currently in employment but capable of finding another job; Includes right to enter and remain to seek work (C-292/89 Antonissen)




  • - A range of “ancillary” rights – in order to remove disadvantages associated with exercising FM rights


Right to receive social advantages under the same terms and conditions as host-state nationals (249/83 Hoeckx (Unger))

Breaking the economic nexus: family members

  • - Spouse of the EU citizen

  • - Partner with whom the EU citizen has contracted a registered partnership

  • - Direct descendants of the EU citizens who are under the age of 21 or who are still dependent upon them

  • - The dependent direct relatives in the ascending line of the EU citizen and the spouse

  • - Ever since the FM have been extended to all citizens of MS, so also to students, pensioners and economically non-active citizens – it is now a free movement of persons.

Personal scope(2): nationality

  • - TFEU only confers rights of movement on persons who are nationals of a MS

  • - Article 20(1) TFEU Every person holding the nationality of a MS shall be a citizen of the Union


  • - MS decide!

Free Movement rights: territorial scope

  • - The need for an inter-state element

Material scope of the right to free movement

  • - Art 45-48 TFEU Right to equal treatment Right to entry, reside and exit a host MS Accept offers of employment actually made Move freely within territory of MS for this purpose Stay in a MS for the purpose of employment







Remain in the territory of a MS after having been employed in that state

  • - Limitations: later

Scope of the right to free movement: Citizenship Directive 2004/38

  • - Codified much of earlier case law

  • - The right of entry, right to stay and to leave

  • - Right of residence: the longer individuals reside in the host state, the more rights they enjoy Rights of permanent residence granted to all EU citizens and their family members (regardless of their nationality and economic status) who have resided legally in a host MS for at least 5


years (Art 16)

  • - Inter-state element: applies directly only to EU citizens who move to or reside in another MS and their family members (based on Art 21 TFEU)

  • - Became important on two issues:


Who are the family members to enjoy this right together with the primary person (CJEU case


law on homosexuals, concubines etc.) What about unemployed persons? Can they enter? Can they stay?

Rights of EU citizen’s family members apply irrespective of their nationality as long


as the claim of primary entry and residence right is made by the EU citizen Freedom from discrimination: all EU citizens and their families exercising residency rights


under the Directive are entitled to equal treatment with the nationals of the host MS (art 24) Safeguards in relation to MS right to expel individuals on grounds of public policy or public security

Right to equal treatment

Specified in Regulation 492/2011/EU (which replaced Reg. 1612/68, not much different from the old one) Articles 1-10:

  • - Equal access to jobs

  • - Equal treatment in working conditions

  • - Equal social and tax advantages

  • - Equal access to training

  • - Equal trade unions rights

  • - Equal right to housing

  • - Equal right on education for their children

Violation of the right to equal treatment


All direct discrimination on the grounds of nationality is prohibited (limited derogations)


  • a. Direct discrimination = similar situations are treated differently or different situations are treated alike Also indirect discrimination is prohibited unless it can be objectively justified


Market access: genuinely non-discriminatory measures prohibited unless justified by “overriding requirements” of public interest

Derogations from the free movement rights (1)


Only on the grounds of public policy, public security or public health (Art 45 para. 3, 52, 62 TFEU)

  • a. Following for conditions

  • b. Case law codified in Art 27 of Citizenship Directive


In addition, FM of workers not applicable to employment in public services (Art 45 para 4 TFEU)


Judicial justifications for non-discriminatory measures

Derogations from FM rights

  • 1. Public policy and public security MS have a certain margin of discretion to determine the concepts of public policy and security



– the EU does not impose a uniform set of values Limitations must be based on personal conduct of the individual concerned and “genuine,

present and sufficiently serious threat” Justifications that are isolated from the particulars of the case or that rely on


considerations of general prevention shall not be accepted Previous criminal conviction in itself is not sufficient ground for limitations Any limitations must meet principle of proportionality

  • 2. Public health



Only diseases with epidemic potential The principle of proportionality

  • 3. These grounds shall not be invoked to serve economic ends

Art 45 (4) TFEU: Public Service Exception

  • - Restrictive interpretation by CJEU Dependent on the nature of the duties and responsibilities involved at work, not on the concept


of public service (Commission v. Belgium)

  • - According to the EU Commission:


Posts within meaning of public service: armed forces, judiciary, tax authorities


Posts outside the meaning: teaching, non-military research in public bodies

Judicial justifications of genuinely non-discriminatory measures

  • - A legitimate aim (“overriding requirement”) in general public interest


Besides the Treaty exceptions!


An open list

  • - Must meet principle of proportionality

Citizenship of the Union

  • - Art 20(1) TFEU: “Every person holding the nationality of a MS shall be citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”


Regardless of the economic status of person

Citizenship of the Union

  • - Right to move and reside freely in a territory of a MS

  • - Rights to vote, to stand as candidates in elections to the EP as well as in municipal elections in their host MS of residence

  • - Right to consular and diplomatic protection in territories of a third country

  • - Right to petition the EP and to apply to the European Ombudsman

  • - Regardless of economic status of person

EU citizenship: right to residence Art. 21 TFEU:

  • 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

    • a. See citizenship directive

Lecture 16: EU Law in MS – Authority of EU Law

When can individuals rely on EU law?

  • - Direct effect of EU law: Union law provision can be invoked by an individual and enforced before a national court


Different from direct applicability

  • - Types of direct effect:


Vertical: invoked against a state


Horizontal: invoked against individuals

Direct effect of EU: Treaties, Regulations & Decisions

Conditions for direct effect under Van Gend en Loos

  • 1. Confer a right to individuals

  • 2. Clear and precise

  • 3. Unconditional

If these conditions are satisfied, then the provision has:

  • - Vertical direct effect: always

  • - Horizontal direct effect: depends on wording of the provision

Direct effect of directives

Vertical Direct Effect (Van Duyn, Ratti)

  • 1. Confer a right to individuals

  • 2. Clear and precise

  • 3. Unconditional (discretion of MS)

  • 4. Deadline for transposition has passed

NO Horizonatl Direct Effect (Marshall, Faccini Dori)


  • - Broad notion of the State (Foster)

  • - Indirect effect (Von Colson)

Indirect effect of Directives Duty of consistent interpretation

  • - Von Colson (para 26-28): The principle established Identifies the national courts as organs of the state which are responsible for the fulfilment of



Community obligations and That national courts need to read their national law in conformity with that Directive


Principle of sincere cooperation (Art 4 TEU)

  • - Indirect effect expands to national measures beyond those implementing the Directive (Marleasing)


Consistent interpretation of national law

  • - BUT, it cannot go as far as leading to a contra legem interpretation of national law (Marleasing)

The principle of supremacy

  • - Interaction between different legal systems

  • - Supremacy as a rule of conflict of laws

  • - Supremacy:



When in conflict a rule of EU law prevails over a rule of national law

Absolute supremacy:


EU law of any rank prevails of national law of any rank

EU law prevails over previous and subsequent national law

Costa v ENEL

  • - By creating a community of unlimited duration with:


Its own institutions


Own legal personality


Own legal capacity under IL


With real powers stemming from a limitation of sovereignty

  • - The MS have Limited their sovereign rights within limited fields; Created a body of law that binds them and their nationals




  • - National courts have a duty to disapply national law in conflict with EU law


BUT EU law would not repeal (invalidate) national law!

  • - Even lower national courts

  • - Even if the national courts are obliged otherwise under national constitution

  • - Even if the national law post-dates the EU measure

  • - Voluntary limitation of sovereignty and the need for effective and uniform EU law requires supremacy

Implications of supremacy

  • - Supremacy does not mean that national measure in conflict with EU law is null/void

  • - It is enough that the national judge applies EU law effectively (effet utile)

  • - National law cannot be a standard of legality of EU law

  • - Only ECJ has the authority to review/interpret/annul EU law (Foto-Frost)

The response of the MS

  • - Relative supremacy of EU law

  • - National (supreme) courts may give primacy to EU law, but usually on different grounds


National constitution as their prime source of loyalty


National constitution requires giving primacy to EU law


Conflict between national constitutions and EU law?

National limits to Supremacy

Internationale Handelsgesselschaft

  • - The view of the European Court:


An EU law measure of any rank should prevail over any national measure of any rank also


over national constitutions National courts cannot review compliance of EU law with national constitution

  • - The view of the German Constitutional Court:


Fundamental rights protected by German constitution cannot be affected by EU law they


are essential inalienable part of the German Constitution Fundamental rights protected by German constitution prevail over conflicting EU law

National limits to Supremacy

  • - Constitutional Courts as guardians of fundamental rights German Internationale Handelsgesselschaft (Solange I) (1974) and Solange II decisions



  • - Constitutional Courts as guardians of competence Last word on whether EU law measures are ultra vires (principle of conferral) Lisbon Judgment



Lecture 17: Judicial Protection in National Courts

Preliminary reference procedure

  • - Under Art 267 TFEU the ECJ has jurisdiction to give rulings on questions from national courts concerning EU law

  • - Types of questions:


Validity and interpretation of EU law


Relevant to the substance of the dispute at hand

  • - Who can refer

  • - Duty or discretion to refer


Last instance


Ambiguity concerning EU law

  • - Effects

  • - Questions from national courts to CJEU concerning


Interpretation of EU law


Validity of EU law

  • - References to be made, when necessary, at some stage in national proceedings, before a case is finally concluded


Prior to the application of EU law by a national court

  • - Function: to ensure uniformity and coherence of EU law across the EU

  • - Cooperation between national courts “in their capacity as courts responsible for the application of Community law” and the CJEU

  • - Not an appeals procedure

Types of preliminary references:

  • 1. Interpretation of the Treaties

    • a. CJEU cannot apply EU law

    • b. CJEU cannot decide on the validity of national law

  • 2. Validity and interpretation of acts of the institutions, bodies, offices or agencies of the EU

    • a. If a national court considers that an EU act is valid: no need to refer

    • b. CJEU has exclusive power to declare EU acts invalid

      • i. National courts cannot do this (Foto-Frost)

    • c. Note: references can be made irrespective of whether or not the provision is directly effective

  • What and how to ask


    References must be clear, not hypothetical and relevant to the substance of the dispute


    EU law question “is necessary to enable to give judgment”


    Can affect outcome of the case


    It is or the national court to determine the relevance of the questions referred. If the national court considers the question is not relevant, a reference will not be necessary

    Who can refer?



    National courts and tribunals (Dorsch)


    Established by law




    Compulsory jurisdiction


    Applies the rule of law






    National competition authority


    Tax authority


    Professional Associations

    Discretion to refer: 267(2) TFEU


    Key: independence from the national administrative authorities


    Any national court


    National law cannot limit this discretion

    Obligation to refer: 267(3) TFEU


    Courts of last instance in the current proceedings (=no remedies available)


    If a national court is in doubt: it must refer (CILFIT)




    No obligation to refer if Identical question was already asked (Da Costa)

    Acte clair: the answer is obvious (CILFIT)

    The matter must be equally obvious in other national courts, also in other

    MS Taking into account different language versions

    EU law must be places in its context and interpreted in the light of the

    provisions of EU law as a whole, taking into account its objectives and its state of evolution No risk of inconsistent interpretation by different national courts

    The effects of a preliminary ruling

    • - A mandatory judgment for the referring national court


    Not an advisory opinion

    • - National courts have to decide on the merits

    • - The national court has a duty to apply the Court’s ruling to the facts before it

    Remedies in national courts for breach of EU law

    • - Article 19(1) TEU: MS shall provide remedies sufficient to ensure effective legal protection in the fields covered by union law”

    • - On the one hand EU law protects national procedural autonomy

    • - But on the other requires that national procedural rules and remedies are




    Equivalent to cases regarding breach of national law Non-equivalent for those for breach of national law less favourable

    Effective and It is impossible in practice to exercise the rights which the national courts are obliged

    to protect (Rewe) Does not “guarantee real and effective judicial protection”, does not have “a real deterrent effect” (Von Colson) Adequate

    In relation to the damage suffered

    Remedies in national courts

    What can national courts do if national remedies are not adequate or effective?

    • - Disapply national law (e.g. rules on limitations, Rewe)

    • - Supplement national remedies with new remedies (interim relief, State liability)

    EU remedies: State liability

    The conditions for State liability (Francovich, paras. 39-40, Brasserie du Pecheur, para. 51)

    • 1. The rule infringed confers rights on individuals irrespective of whether they have direct effect

    • 2. It is possible to identify the content of those rights

    • 3. Causal link between the breach and the damage sustained

    • 4. The breach of law must be sufficiently serious

    Lecture 18: The Court of Justice of the EU and the Enforcement of EU Law

    Challenging national measures


    Commission v Member State: Article 258 TFEU




    Administrative phase

    Judicial phase

    Penalties for non-compliance (260 TFEU)


    Member State v Member State: Article 259 TFEU


    Grounds for review:


    Failure to apply/implement EU law

    Enforcement proceedings


    Administrative phase



    Commission’s discretion

    Letter of formal notice



    Further informal discussions

    Commission’s Reasoned Opinion

    MS does not comply with reasoned opinion

    Judicial Phase Declaratory judgement




    Penalties (Art 260 TFEU) If a MS does not comply with the judgement


    A second procedure and a separate judgment needed!

    Unless: non-implementation of a directive

    The Court of Justice of the EU

    • - The Court System The Court of Justice (1 judge from each MS)



    The General Court (1 judge from each MS) Hearing at first instance actions based on 263, 265, 268, 340 TFEU


    Decisions can be appealed to the Court of Justice on points of law Specialized court: Civil Service Tribunal (7 judges)

    • - Composition of the Court of Justice:


    28 judges


    9 advocate generals

    • - Jurisdiction: based on (and specified in) the Treaties

    • - The Court’s judgment and its role as precedent Ensuring EU law is interpreted and applied the same in every EU countries; ensuring countries