Cedric Ryngaert

Recognition of States : International Law or Realpolitik? The practice of recognition in the wake of Kosovo, South Ossetia and Abkhazia

This article deals with the fundamental evolution that the process of state recognition has gone through during the past few decades. Whereas the recognition of new states used to be subject to a relatively concise and clear-cut normative framework consisting of factual criteria, the dissolution of Yugoslavia marked the introduction of a new set of moral norms used to determine whether or not an entity should be recognized as a state. This evolution gave rise to a high level of uncertainty, among both authors and the state community, as was painfully shown by the international discord during the crises in Kosovo and South Ossetia/Abkhazia. A renewed normative framework for recognition that integrates both factual and moral criteria is needed if the international community wants to prevent each claim to statehood becoming a threat to international stability.

Universal tort jurisdiction over gross human rights violations

Some states, the United States in particular, have allowed their courts to exercise universal tort jurisdiction over gross human rights violations, i.e., to hear complaints for damages by victims of such violations committed abroad. It is argued that, from a policy perspective, universal tort jurisdiction has some distinctive advantages over universal criminal jurisdiction; in particular, it may take victims more seriously. On the downside, it may possibly serve the function of morally condemning gross human rights violations less well. From a legal perspective, concerns have been raised over the legality of exercising universal tort jurisdiction under international law. It is submitted nevertheless that the fact that only a limited number of states allow the exercise of universal tort jurisdiction is not fatal to the lawfulness of such jurisdiction under international law. These states may not provide for universal tort jurisdiction because they prefer criminal justice solutions, rather than because they consider such jurisdiction to be internationally unlawful. There is, in addition, no evidence of substantial international protest against assertions of universal tort jurisdiction. As a result, there is as of yet insufficient evidence of a customary international law norm outlawing universal tort jurisdiction having crystallized.

Democracy and International Law

Traditionally, international law has barely paid attention to the democratic legitimacy of its most important subjects – states –, having been concerned only with relations between states and not within them. The neutral position of international law vis-a-vis a states internal form of government changed after the collapse of communism. The question of whether the citizen could claim democratic governance, made headway. The normative value of democracy has also deeply influenced the foreign policy of a large number of states: since the 1990s, respect for democracy has at times been considered a condition for recognizing a new state and it is increasingly a prerequisite for membership of international organizations. A forcible imposition of democracy is however doubtful. Finally, the article examines whether international law itself is made in a sufficiently democratic manner. The formation of international law through treaties or custom, for instance, is inherently suffering from a democracy deficit, even though some remedies seem possible. There are likewise problems of democratic deficits in the decision-making processes in international organizations. Powerful states are able to use decision-making to their advantage by using all kinds of formal and informal mechanisms. The article explores, as a case-study, the situation in the World Trade Organization.

Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: an Inquiry into the Application of the ‘Effective Control’ Standard after Behrami

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILCs Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.

Western European Union v. Siedler; General Secretariat of the ACP Group v. Lutchmaya; General Secretariat of the ACP Group v. B.D.

Belgian Supreme Court decisions on the immunities of international institutions in labor and employment matters

Territory in the Law of Jurisdiction: Imagining Alternatives

Territory is central to the doctrine of international jurisdiction. However, the use of territory as the jurisdictional linchpin is a political choice, the result of a confluence of historically specific political, material, epistemic, and above all mapping practices. The political contingency of territory begs the question whether alternative, non-territorial jurisdictional concepts could be contemplated. In this contribution, community, temporality, and justice are explored. The territorial imbrications of these jurisdictional alternatives are acknowledged, but it is highlighted how territory can in fact be re-conceptualized in the service of ‘its others’. Opting for the ‘others’ and for a novel conceptualization of territory remains a political choice. However, the political character of jurisdiction is not something to lament, but rather to celebrate, as it creates opportunities for a variety of political actors to have an impact on the actual application and construction of the un(der)determined notions of jurisdiction and territory, and ultimately on the modes of exercise of public authority. The salience of these theoretical ideas is exemplified by applying them to the case of transnational human rights litigation against corporations, a manifestation of socio-legal globalization that encapsulates the key role played by jurisdiction in negotiating claims of authority.

Embassy bank accounts and State immunity from execution : Doing justice to the financial interests of creditors

Embassy bank accounts are among the properties of states most widely present in foreign states. Accordingly, they constitute an ideal target for attachment by creditors. International instruments have largely upheld state immunity from execution regarding bank accounts, however. Likewise, state practice largely – and apparently increasingly – supports state immunity from measures of attachment, by applying a presumption that funds in embassy bank accounts are used for governmental non-commercial purposes. This approach is overly deferential to the state. Instead, it is argued that domestic courts should require that the state, at least partially, discharge the burden of proof regarding the nature (commercial/sovereign) of the funds in the bank account. A failure to discharge this burden should result in a rejection of immunity. Only such an approach adequately balances the interests of states and creditors, and does sufficient justice to the creditors right of access to a court. In addition, it is argued that such a balance is also brought about by construing literally general waivers of immunity from attachment, as not requiring an additional specific waiver regarding embassy bank accounts.

Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law

The principle of territoriality is the cornerstone of the law of criminal jurisdication. The question arises, however, how the principle ought to be applied to cross-frontier offences which have connections to more than one territory. It is demonstrated that, from a study of six Western States, it transpires that the constituent elements approach (pursuant to which jurisdiction is found as soon as a constituent element of the crime has occurred on the territory) is the dominant approach, with the exception of England. As far as cross-frontier participation and inchoate offences are concerned, however, solutions diverge considerably among States.

Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the Support of the European Union

jurisdiction. It has even been argued that the entry into force of the Rome Statute of the ICC prohibits the exercise of universal jurisdiction. In this note, I will argue that this is a misconception and that the European Union, one of the staunchest supporters of the ICC, should encourage and assist its Member States to exercise universal jurisdiction over crimes against international humanitarian law (hereinafter referred

Provocative climate protection: EU "extraterritorial" regulation of maritime emissions

In 2015, frustrated by the slow pace of negotiations in the International Maritime Organisation, the EU issued Regulation 2015/757 on the monitoring, reporting, and verification of carbon dioxide emissions from maritime transport. Echoing the controversial Aviation Directive, the Regulation is intended to support a unilateral market-based measure, and includes emissions from outside EU territory. This raises the question whether, according to international law, the EU has jurisdiction to regulate such ‘extraterritorial’ circumstances. In exploring the appropriate jurisdictional bases, we argue that neither the Law of the Sea Convention, nor world trade law definitively decide this issue. We therefore devote more detailed attention to the customary international law of State jurisdiction supplementing these regimes. We seek to build on the existing analysis by examining climate change as a ‘common concern of mankind’. We argue that this emerging concept has distinct legal implications that can and should be accommodated within the interest-balancing exercise underlying the jurisdictional analysis.