General Principles of EU Law: Systemic Implications of "Twin" TFEU Article 11 and EUCFR Article 37

Under the basic tenet of sustainable development, TFEU Article 11 compels the integration of environmental protection into the regulatory action of the European Union (EU). Such a provision is paralleled in the human rights framework by ‘twin’ EUCFR Article 37. What are the implications of this dual system? The analysis assesses the systemic implications of the inclusion of TFEU Article 11 and EUCFR Article 37 as core twin provisions in different sources of EU law, particularly in light of the foreseeable accession of the EU to the ECHR envisaged in TEU Article 6(2). Arguably, TFEU Article 11 and EUCFR Article 37 create an imbalance between the EU and ECHR legal systems and might foster the full establishment of environmental protection as a fundamental right in both EU law and the ECHR

International and Transnational Regulation of Private Security Services: Effective Complementarity

Regulation is progressively subject to a process of privatization and globalization, so much so that the expressions global law and transnational regulation are often opposed to the classical distinction between domestic law and international law . The area of security services is also undergoing this evolution and is increasingly governed by private regulatory initiatives, complementing public norms transnationally. Since security entails the use of force, such a process raises particular issues with respect to fundamental rights, which are crucial to the establishment of a transparent level playing field. A systemic analysis based on contracts, services, compliance, and enforcement mechanisms demonstrates that transnational private regulation theoretically harmonizes with fundamental public norms, but practical implementation is complex, specifically in conflict situations. This is essentially due to the narrow inclusion of fundamental substantive rules in contractual clauses, as well as flaws in the effectiveness and interaction of private and public implementation mechanisms. It is argued that such problems are basically grounded in the fact that private security contractors mostly do not legally qualify as combatants in conflict situations: this question should be addressed separately, particularly within the framework of the existing conventions on the laws of war. The issue is critical and affects not only the responsibility of Private Security Companies (PSCs) and their personnel, but also their protection and fundamental rights, as well as the liability of third persons

International and Transnational Regulation of Private Security Services: Effective Complementarity

Regulation is progressively subject to a process of privatization and globalization, so much so that the expressions global law and transnational regulation are often opposed to the classical distinction between domestic law and international law . The area of security services is also undergoing this evolution and is increasingly governed by private regulatory initiatives, complementing public norms transnationally. Since security entails the use of force, such a process raises particular issues with respect to fundamental rights, which are crucial to the establishment of a transparent level playing field. A systemic analysis based on contracts, services, compliance, and enforcement mechanisms demonstrates that transnational private regulation theoretically harmonizes with fundamental public norms, but practical implementation is complex, specifically in conflict situations. This is essentially due to the narrow inclusion of fundamental substantive rules in contractual clauses, as well as flaws in the effectiveness and interaction of private and public implementation mechanisms. It is argued that such problems are basically grounded in the fact that private security contractors mostly do not legally qualify as combatants in conflict situations: this question should be addressed separately, particularly within the framework of the existing conventions on the laws of war. The issue is critical and affects not only the responsibility of Private Security Companies (PSCs) and their personnel, but also their protection and fundamental rights, as well as the liability of third persons

Disentangling Conflicts Of Laws In EU And Member States’ Investment Agreements

The European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled $42,6761 million, while inflow totaled$47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon Treaty in 2009, the EU has negotiated international investment agreements with economies such as Australia, Canada, China, Vietnam, Singapore, and the United States. Among these agreements, the Energy Charter Treaty (“ECT”) is both an intra-EU and extra-EU investment agreement, to which both the EU and Member States are parties. It is therefore of critical importance to establish a predictable legal framework governing investments within and outside of the EU

Towards a Peremptory Duty to Curb Greenhouse Gas Emissions?

Is international law developing towards the recognition of a peremptory obligation for States and international organizations to stabilize anthropogenic greenhouse gas (“GHG”) emissions, so as to collectively attain a sustainable global average temperature increase? Do States have an obligation to cooperate and achieve this objective? Does such an obligation extend to non-State subjects? This Article explores the possibility that a new peremptory norm is progressively emerging in international law to contain global average temperature increase within sustainable limits, currently well below 2°C and possibly even 1.5°C above pre-industrial levels under the Paris Agreement, as well as its nature and scope. Arguably, the international and domestic practice of sovereign entities, civil society and NGOs is supportive, including the quasi-universal participation of States and international organizations in the UNFCCC and related instruments. Furthermore, the fundamental and shared nature of the atmosphere and climate, which cannot be adequately protected via conventions, compels thinking in terms of a goaloriented erga omnes duty akin to an obligation of result, triggering universal invocation of responsibility, sanctions, and enforcement. In light of the evolution of international law, the obligation to achieve sustainable anthropogenic GHG emissions could also address non-State natural and legal persons as both duty-bearers and right-holders, waiving immunity and triggering universal jurisdiction

Climate Change, Regionalism, and Universalism: Elegy for the Arctic and the Antarctic?

The Arctic lays north of the Arctic Circle, at a minimum latitude of 66.33°, that is, the most northerly of the major circles of the Earth’s latitude. The Arctic Circle is essentially an ocean surrounded by land; it includes portions of the territories of the United States, Canada, Denmark (notably Greenland), Norway, Sweden, Finland, and Russia, as well as parts of Iceland’s continental shelf. Part of the Arctic territory is subject to temperatures that are permanently lower than the freezing point of water and thus constitutes the “permafrost.” To a large extent, ice covers the Arctic Ocean, halving in summer and expanding in fall and winter. Only 28 percent of the ice pack is multiannual, with a thickness that is up to 3-4 meters and ridges up to 20 meters

Disentangling conflicts of laws in EU and member states’ investment agreements

The European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled $42,6761 million, while inflow totaled$47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon Treaty in 2009, the EU has negotiated international investment agreements with economies such as Australia, Canada, China, Vietnam, Singapore, and the United States. Among these agreements, the Energy Charter Treaty (“ECT”) is both an intra-EU and extra-EU investment agreement, to which both the EU and Member States are parties. It is therefore of critical importance to establish a predictable legal framework governing investments within and outside of the EU

Towards a peremptory duty to curb greenhouse gas emissions?

Is international law developing towards the recognition of a peremptory obligation for States and international organizations to stabilize anthropogenic greenhouse gas (“GHG”) emissions, so as to collectively attain a sustainable global average temperature increase? Do States have an obligation to cooperate and achieve this objective? Does such an obligation extend to non-State subjects? This Article explores the possibility that a new peremptory norm is progressively emerging in international law to contain global average temperature increase within sustainable limits, currently well below 2°C and possibly even 1.5°C above pre-industrial levels under the Paris Agreement, as well as its nature and scope. Arguably, the international and domestic practice of sovereign entities, civil society and NGOs is supportive, including the quasi-universal participation of States and international organizations in the UNFCCC and related instruments. Furthermore, the fundamental and shared nature of the atmosphere and climate, which cannot be adequately protected via conventions, compels thinking in terms of a goaloriented erga omnes duty akin to an obligation of result, triggering universal invocation of responsibility, sanctions, and enforcement. In light of the evolution of international law, the obligation to achieve sustainable anthropogenic GHG emissions could also address non-State natural and legal persons as both duty-bearers and right-holders, waiving immunity and triggering universal jurisdiction

The Asymmetries of Disability Rights Protection in the Inter-American System

This contribution explores disability rights protection in Inter-American States within the framework of the OAS and in the context of the obligations established under the CIADDIS and the CRPD. Following the classical division between ‘primary’ and ‘secondary’ rules, the contribution first sketches key regulatory initiatives in the area of disability rights and second considers compliance and enforcement mechanisms. Along these lines, the first section illustrates similarities and differences between the CIADDIS and the CRPD and, within this framework, essential regional regulatory initiatives. The second section assesses disability rights in select countries, based on periodic reports under the CIADDIS and CRPD. The section examines the four largest countries by population in the region, notably, the United States of America (US), Mexico, Brazil and Colombia. The third section explores the enforcement of disability rights via key cases before the Inter-American Commission on Human Rights (IAComHR) and the Inter-American Court of Human Rights (IACtHR). The purpose is providing a comprehensive understanding of disability rights in the region and identifying key regulatory problems and ways forward

Extra-territorial application of the EU emission trading system : critical divergences between the EU and the US

By means of Directive 2008/101 the EU extended its Emission Trading System to airline companies whose aircraft arrive at or depart from the territory of the EU Member States. Requested to provide a preliminary opinion on the validity of the Directive–especially in light of its extraterritorial application–the CJEU confirmed its effectiveness, arguably based mainly on the principle of sovereignty and only subsidiarily on the principle of environmental protection. In light of the interpretation provided by the CJEU, this paper critically assesses Directive 2008/101 and concludes that its consistency with international law should be considered in the light of the secondary consequences of the duty to protect the environment rather than territorial sovereignty.The Redefining the Transatlantic Relationship and its Role in Shaping Global Governance (TRANSWORLD) project is funded by the European Union’s 7th Framework Programme under grant agreement no. 290454