mercoledì 29 marzo 2017

Northern Ireland and ‘Brexit’: The European Economic Area Option

Brian Doherty
Independent

John Temple Lang
University of Dublin - Trinity College; Cleary Gottlieb Steen & Hamilton LLP

Christopher McCrudden
Queen's University Belfast - School of Law; University of Michigan Law School

Lee McGowan
Queen's University Belfast - Department of Politics and International Studies

David Phinnemore
Queen's University Belfast

Dagmar Schiek
Queen's University Belfast - School of Law, Centre of European and Transnational Legal Studies

Date Written: March 15, 2017

Abstract
UK withdrawal from the EU poses many challenges for Northern Ireland. The preferred option of Northern Ireland's First Minister and deputy First Minister is, in many respects, for the status quo to be maintained. An approach that could mitigate some of the impact of Brexit on Northern Ireland and maintain much of the economic status quo is for Northern Ireland to become a member of the European Economic Area (EEA). This paper sets out what the EEA offers and highlights how EEA membership might be achieved as well as the issues it raises. In the EEA, Northern Ireland would retain full access to the Single Market. It would continue to be part of a European market with the free movement of goods, services, capital and people. EEA membership would also permit some citizenship rights to be maintained. It would not be a panacea, however. It would also bring with it political and legal challenges. But it is a known arrangement and would therefore ensure a significant degree of certainty.

Keywords: Brexit, Northern Ireland, European Economic Area, EEA

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2933715

domenica 26 marzo 2017

Shany: All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

Yuval Shany
Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

January 1, 2017

Abstract
The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines. 

Part One of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs – application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Part Two then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Part Three concludes.

Keywords: International human rights law, margin of appreciation, European Court of Human Rights, Human Rights Committee, judicial Deference, Treaty, Interpretation, International Courts

Territorial Disputes in the Context of Secessionist Conflicts M. Kohen & M. Hebie (eds), Research Handbook on Territorial Disputes in International Law, Edward Elgar Publishing, 2017

Territorial Disputes in the Context of Secessionist Conflicts
M. Kohen & M. Hebie (eds), Research Handbook on Territorial Disputes in International Law, Edward Elgar Publishing, 2017

Theodore Christakis
University Grenoble-Alpes, CESICE, France; Institut Universitaire de France

Aristoteles Constantinides
University of Cyprus

Date Written: June 5, 2016

Abstract
In this chapter, we explore the territorial dimension of non-decolonization secessionist conflicts in international law. Our investigation is divided in three parts. The first part focuses on secessions resulting from violations of jus cogens norms. We conclude that contemporary international law prohibits such secessions and prescribes non-recognition as the legal consequence. In the second part, we explore the legal framework under general international law relating to unilateral secessions that do not involve violations of jus cogens. We conclude that even though international law neither authorizes nor outright prohibits unilateral secession it sets many obstacles and presumptions against its ultimate success, but ultimately leaves some space for the principle of effectiveness in exceptional cases. Our third part investigates consensual agreements in the context of secessionist conflicts, which have either led to the creation of new states or accommodated the self-determination aspirations of separatist entities within parent states based on territorial self-governance arrangements. This part also highlights the interplay between consent, effectivités and uti possidetis in state practice and also gives a close look to three arbitrations that dealt with territorial disputes in various non/post-colonial contexts.

Keywords: secession, self-determination, territorial disputes, effectiveness, jus cogens, recognition, non-recognition, uti possidetis, consent, territorial self-government, autonomy