Jacques Hartmann

The Copenhagen Process: Principles and Guidelines

This article analyses the outcome of the ‘Copenhagen Process on the Handling of Detainees in International Military Operations’: a five-year multi-stakeholder effort to develop principles and good practices on detention in international military operations. The Process concluded in 2012 when 18 States ‘welcomed’ a set of non-binding ‘Principles and Guidelines.’ The Principles and Guidelines address uncertainties surrounding the legal basis for the detention, treatment, and transfer of detainees during international military operations, drawing on both human rights and international humanitarian law. This article comments on the Principles and Guidelines, shedding some light on the context in which they were developed and adopted.

Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.

The United Nations Security Council's Legislative and Enforcement Powers and Climate Change

Since the adoption of the 1992 UN Framework Convention on Climate Change (UNFCCC), international climate change law-making has chiefly been the prerogative of the treaty bodies established under the Convention and its Protocol. The adoption of the Paris Agreement in December 2015 is an important step forward for the multilateral climate change framework, but, despite its rapid entry into force, it is still too early to tell whether the Paris Agreement will prove to be an effective and successful intergovernmental framework for tackling climate change. Nor is it necessarily the only relevant institution in the climate change regime. Given the urgency of climate change and the glacial pace of multilateral climate law-making, the idea of exploiting the United Nations Security Council’s legislative and enforcement powers to lead global efforts on climate change therefore holds a significant appeal. This chapter focuses on the use of the Council’s legislative and enforcement powers to help states get out of the climate change law-making quagmire. Firstly, the chapter analyses the powers and practice of the Council both as a global legislator, and in enforcing states’ obligations. Secondly, the chapter considers how existing Council law-making and enforcement powers can be applied to climate change. The chapter concludes by reflecting on advantages and disadvantages of Council’s legislative and enforcement action in relation to climate change.

A Battle for the Skies: Applying the European Emissions Trading System to International Aviation

The European Union (EU) has long been in a diplomatic row with its main trading partners. The row concerns the EU’s decision to include foreign aircraft emissions within its Emissions Trading System (ETS). Several States have objected to the inclusion as a violation of their sovereignty. The importance of the quarrel can hardly be overestimated: it is the first real clash concerning unilateral measures to combat climate change. By including foreign aircraft emissions within the ETS, the EU has taken unilateral action to prevent international environmental harm. The EU’s action has given rise to some fundamental questions concerning legislative jurisdiction. Moreover, as the impact of climate change becomes more severe, climate change may serve as a pretext for all kinds of protectionist policies. The current quarrel is therefore also one of principle. This article analyses the jurisdictional basis for extending the ETS to extraterritorial flights and the reactions of third States. In doing so, the article reveals fundamental limits in international rules concerning the allocation of competencies between States, especially in relation to the protection of the environment. The article considers these shortcomings in the context of the present case and suggests a new approach to the traditional principles of sovereignty and legislative jurisdiction.