I have just published a piece in European Papers that critically analyzes the very interesting Tomanović judgment of the England and Wales High Court (Queen’s Bench Division).
Here is the abstract:
In its judgment of 13 February 2019 in the case of Tomanović et. al. v. the European Union et. al., the English High Court of Justice dismissed several claims based on human rights violations by EULEX Kosovo. Although the High Court’s dismissal was ultimately based on the lacking incorporation of the Treaty provisions on the Common Foreign and Security Policy into domestic law, the judgment contains extensive obiter dicta discussing key Union law matters. In this Insight I summarize, contextualize and reflect critically upon the High Court’s reasoning. In particular, I focus on the extent of the Court of Justice’s jurisdiction over – and the application of the Foto-Frost principle to – the CFSP.
Click here to access the full text on EuropeanPapers.eu (open access).
… since the last time I updated this blog. Much has happened in both my personal and professional life over the last 2 years: I’ve finished my PhD, got a Senior Lecturship at the UiO, and last (but definitely not least) a daughter. Additionally, I have published a few smaller things that I forgot to post about here:
Currently I am working on publishing my PhD thesis, entitled The Human Rights Accountability Mechanisms of International Organizations: A Framework and Three Case Studies. While you await its publication, you can enjoy this little teaser of an abstract:
International organizations are becoming increasingly powerful. As a consequence, they are now more capable than ever of violating the human rights of individuals. But how can international organizations be held to account for such violations? This thesis assesses the procedural mechanisms that may hold international organizations to account. First, a general framework for identifying, analyzing and assessing the accountability mechanisms of international organizations is established. Second, the general framework is applied to three distinct cases: the EU’s Common Security and Defence Policy missions, Refugee camp administration by the UN High Commissioner for Refugees, and Detention by the International Criminal Court. The thesis concludes that in none of the three case studies do the existing accountability mechanisms fulfill the normative requirements set out in the general framework. However, there are significant variations between the cases, and between different types of accountability mechanisms. In light of these findings, the thesis puts forward some hypotheses applicable to international organizations generally.
Yesterday the Court of Justice of the European Union (the CJEU) delivered its judgment in the long-awaited Rosneft case (C-72/15, ECLI:EU:C:2017:236). The judgment clarifies some aspects of the CJEU’s jurisdiction over the Common Foreign and Security Policy (CFSP). Moreover, it is an important precedent in the field of EU sanctions law generally, and also resolve some questions of interpretation that are particular to the Russian sanctions.
In this blog post I will focus on what the judgment in Rosneft adds to the existing case-law on the review of CFSP decisions. Thus, I will not be discussing any of the more specific questions of EU sanctions law nor summarize the full 197 paragraph judgment. For those looking for a quick summary of the case, I refer to the succinct post by Maya Lester QC at the Sanctions Law blog.
An article (partially) based on a chapter in my PhD thesis has just been published in International and Comparative Law Quarterly, issue no. 1/2017, pages 161-207. The title of the article is: Accountability for Human Rights Violations by CSDP Missions: Available and Sufficient?
Here is the abstract:
This article demonstrates that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU’s Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated. The assessment of the CSDP accountability mechanisms—the Court of Justice of the European Union, domestic courts of EU Member States, and other mechanisms at the international level—is conducted in light of the requirements laid down in Article 13 of the European Convention of Human Rights. The consequences of the insufficiency of these mechanisms for the EU’s accession to the ECHR are also touched upon.
Click here to access the full text of the article (sharing link, subscription NOT required).
I just published a brief case note in the European Papers’ European Forum on case C-455/14 P H v. Council et al. . That case is the latest in a line of recent cases that help clarify and, arguably, expand the CJEU’s jurisdiction over the Common Foreign and Security Policy.
The case note is available here.
European Papers is a new (2016) open-access e-journal. And it is not only a journal, but also a forum for discussions of critical discussions of European legal issues through short, peer-reviewed pieces (“Insights” and “Highlights”). See EuropeanPapers.eu for more information about the journal and the European Forum.
(Originally published on the PluriCourts blog.)
July 26, 2016, the EFTA Court released a preliminary judgment in case E-28/15 Yankuba Jabbi v. Norway . The case concerned the free movement for persons under European Economic Area (EEA) law, specifically the derived rights of third-country nationals to free movement.
The subject-matter of the case may be of less interest to PluriCourts, however, in paragraph 71 the court discusses its own legitimacy. There the EFTA Court writes (emphasis added):
“Without independence in its adjudication no court could claim legitimacy. Every court must exercise its jurisdiction based upon the relevant legal sources. An essential legal source for the Court is the case law of the ECJ and the General Court. That case law must nevertheless be read in its context. Normally, this does not pose particular problems because the context is the same. However, when it comes to the legal sources in this case, the ECJ has partly ruled out the application of the Directive and instead applied the concept of Union citizenship in evolution of the free movement of persons in the EU.”
It is understandable that the EFTA Court felt the need to emphasize the importance of basing its judgments on relevant legal sources, given the difficult legal questions that arose.* Moreover, this is only a couple of sentences, and “legitimacy” is mentioned only once.
Still, I cannot remember having seen a reference to the concept of legitimacy comparable to this from the EFTA Court in any other decision of an international court or tribunal. But perhaps the readers of this blog know of more examples? If so, please add a comment or send a tweet in my direction (@StianOby).
*For those interested in an overview of the details of the Jabbi case, and the legal issues concerning the free movement of persons in the EEA, I recommend this great blog post written by Karin Fløistad – my colleague and author of a just-submitted PhD thesis on the EEA agreement in a revised EU constitutional framework for welfare services.
(co-authored with Alexander Arnesen, former research assistant at the University of Oslo’s Centre for European Law)
The frequent legal challenges to the European Union’s economic sanctions regimes have resulted in several judgments chiseling out key issues of EU law. Case C-72/15 Rosneft, which will be decided in the coming months, provides the European Court of Justice (ECJ) yet another opportunity to do so. In particular, the Rosneft case invites the ECJ to clarify its jurisdiction and power of judicial review over decisions taken by the Council under the Common Foreign and Security Policy (CFSP) – in the context of a reference for preliminary ruling.
The recently-released Opinion of Advocate General Wathelet in the Rosneft case was therefore eagerly awaited, and in this blog post we will examine two aspects of it. First, we will discuss his conclusion that the ECJ has jurisdiction to review the legality of CFSP decisions by way of preliminary ruling. Second, we have some remarks on his rather swift and somewhat formalistic argument for why CFSP decisions can never be regarded as “legislative acts” – regardless of how they are formulated. Continue reading