Fisnik Korenica

Bio: Fisnik Korenica is an academic researcher from VU University Amsterdam. The author has contributed to research in topics: Accession & Jurisdiction. The author has an hindex of 3, co-authored 12 publications receiving 22 citations.

A New Start for the Accession of the EU to the ECHR

Abstract: This chapter examines the main steps that provoked the accession process and the debates that surrounded the expression for the need for accession, including the core results that the latter will bear on the EU’s external picture both with regard to the Convention system and international law at-large. Internal changes to the EU position vis-a-vis Member States resulting from the accession process will be also examined vigilantly. This chapter therefore addresses the research question: ‘What are the main changes that the DAA will bring to the EU external image, and what are the core issues settled in the Draft Accession Agreement to this end?’ The chapter begins by analyzing how the need for EU accession to the ECHR was originally articulated, and the rationale for it to be a necessity for the organizational design of the Union. It then turns to the question of the main changes that the treaty system will experience with the EU placed in a state-like contracting position within the ECHR, and how will this affect the external treaty-making landscape of the EU. The chapter carefully analyzes how EU accession to the ECHR will be of a distinct nature, as the ECHR has been conventionally a state-based instrument of international law. Unique arguments are also presented in relation to the changes that international law will experience with the EU situated as a state-like party to a historically state-owned sovereign domain of human rights, namely the Convention system. This is contrasted with the Vienna Convention on the Law of Treaties’ principles, showing how conventional views on treaty-making on human rights may be changed with the EU becoming a contracting party to the ECHR. All this is analyzed in the context of a multilayered human rights law in Europe debate, with the EU cultivating its federal attributes with accession to the ECHR. The chapter then embarks on the issue of treaty competence of the EU to accede to a human-rights instrument, previously a states-reserved domain of law, and the main implications that this process may bring to the EU external image, both vis-a-vis international law but also Member States legal orders. The chapter subsequently offers a Convention-based outlook on the structural changes that EU accession therein will generate, upholding the argument that the Convention will not only become a hybrid, but rather complex treaty system. Afterwards, the chapter embarks on an examination of the post-accession relationship between the EU, ECHR and EU Member States, arguing that the position of the EU will be strengthened post-accession, with the judicial dialogue being shifted from Member States-Strasbourg to a Luxembourg–Strasbourg orientation.

Status of ECHR and DAA in EU Legal Order

Abstract: The relationship between the Luxembourg and Strasbourg courts, EU law and the Convention system at-large are fundamentally conditioned by the legal status of the Convention and Accession Agreement in EU law. This chapter offers a novel examination of the status of the Convention and the DAA in EU law post-accession, analyzing not only the overall picture of cohabitation and/or competition but also the internal effect that accession will likely pose to the EU legal order (in relation to the Convention and the DAA). This chapter responds to the research question: ‘What is the legal status of the ECHR and DAA in the EU legal order post-accession?’ The chapter starts by examining the position and mode of penetration of international agreements in EU legal order, giving special emphasis to the effect that such agreements produce within the EU legal order. Haegeman, Commission v. Germany, Demirel and Bananas are examined to deconstruct Luxembourg’s stance on international agreements concluded by the EU, either alone or together with Member States. A careful deconstruction of Luxembourg’s jurisdiction to observe those agreements is also provided, showing how similarities may be drawn with regard to both the Convention and Accession Agreement. Then, the chapter embarks on an examination of the status of the Convention and the DAA, contrasting them with current Luxembourg benchmarks on international agreements. Arguing that neither the Convention nor the DAA form part of the usual international agreements which the EU has concluded, the chapter goes on to provide a novel analysis of the status of Convention and the DAA in the EU legal order arguing that this should be taken as a very unique case. The chapter then provides a comprehensive analysis on the specific status of the Convention and the DAA post-accession, examining both their rank and implied position within a multilayered system of human rights, while considering potential implications.

Attribution of Liability Under the Co-respondent Mechanism

Abstract: This chapter offers an analysis of the individual complaint mechanism in EU-related cases, with a specific view to the recently innovated co-respondent mechanism. The latter being a core but also the most essential device to ensure the autonomy of EU law, and to functionalize the multifaceted nature of EU–Member States relation before the Convention system. The chapter responds to the research sub-question: ‘How may the distribution of burden for ECHR violations be shared between the EU and Member States under the co-respondent mechanism, and where do loopholes remain?’ Essentially, this chapter engages with the model of liability sharing between the EU and Member States which the DAA installs within the context of EU Treaties’ prescriptions and foundational limitations.

EU Becoming a Human Rights Law Organization: Starting from Nowhere with a ‘ gouvernment des juges ’

Abstract: This chapter examines human rights law development of the Union with reference to the Convention and Strasbourg regime of law at-large. The chapter evolves around the research question ‘How did the EU become a human rights law organization and the gradual development of its relationship with the ECHR system?’ Two perspectives of analysis are provided below: first, an EU-based perspective of human rights law development, focusing on the Convention and Strasbourg regime of law, and, second, a Strasbourg-based view of EU human rights development, and gradual recognition of the EU as a human rights liable entity and the means via which such relationship became construed. Overall, the chapter offers a much grounded outlook of the relationship between the Luxembourg and Strasbourg regimes of law, one that is needed to start shedding light on the preconditions that EU accession to the ECHR will likely materialize on these two legal orders.

Admissibility Before the Strasbourg Court: An Outlook on the EU-Law-Originated Applications

Abstract: This chapter offers an examination of the procedure that Strasbourg Court will pursue once an EU-related application reaches its jurisdictional gates in a post-accession scenario, contextualized against a background of exceptional rules which Strasbourg may apply on an exceptional contracting party like the EU. The chapter responds to the research sub-question: ‘How should Strasbourg Court perform its admissibility jurisdiction on Luxembourg/EU-related cases, with an eye also on the exceptional admissibility standards? How may these decisions of Strasbourg Court look into EU legal order?’ The chapter watchfully examines Strasbourg’s admissibility standards applied on EU-related cases, playing with the flexibility clauses which the former may apply on EU-originated cases, while offering likely perspectives on such scenarios. Such flexibility standards are looked from the perspective of Strasbourg Court’s likely tendencies to become a court of first instance in cases when there are extremely difficult circumstances for the EU applicant to become reviewed by the Luxembourg Court first. The EU–Member States problems in relation to the parallel systems of available remedies are also considered in light of the Strasbourg’s admissibility rules. The chapter also addresses whether and how EU primary law violations may be filed at Strasbourg, in addition to a special analysis on the latter’s decisions nature of effect within EU legal order. The chapter concludes with the remark that Strasbourg Court may undoubtedly pass over some EU-law-autonomy safeguards and find cases admissible using numerous flexibility standards, which may definitely appear as interfering to EU law autonomy. The internal reception of Strasbourg decisions in EU law follows the same logic.

Advancing tourism’s moral morphology: Relational metaphors for just and sustainable arctic tourism

Abstract: Perceptions and representations of Arctic tourism that reify ‘pristine’ nature can obscure the livelihoods of Arctic Aboriginal inhabitants, thus impeding cooperation among all Arctic tourism stake...

Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

Abstract: This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts. International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. In analyzing the potential role that such actors could play in law creation, we reject the traditional state/non-state distinction underlying the doctrine of sources in favor of a tripartite framework of states, state empowered bodies (such as international courts and international governmental organizations), and non-state actors (such as individuals, businesses, NGOs and armed groups). Focusing on the last category, we explore various theories for justifying some or all non-state actors playing a role in international law-making. In particular, we assess the merits of giving armed groups a role in the creation of international humanitarian law applicable in non-international armed conflicts. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states. Accordingly, we put forward a theory of hybrid sources under which armed groups could be permitted to recognize existing international obligations or undertake new ones, without raising concerns about placing armed groups and states on a par or downgrading international legal standards.

Interaction between EU law and international law in the light of Intertanko and Kadi; the dilemma of norms binding the Member States but nog the Community

Abstract: This Article addresses the legal question of the international obligations of one or more EU Member States that come within the scope of EU law. Zooming in on two recent judgments by the European Court of Justice, Intertanko and Kadi, the conInteraction between EU law and international law 227 tribution focuses, in particular, on the situation where the EU sees itself confronted with the effects of obligations of its Member States as a result of the implementation of these obligations in the EU legal order by way of legislation. In both Intertanko and Kadi, the Court refused to bring the international context of the disputed EC measures into the equation. As the international norms from which these measures derived did not formally bind the Community, the Court reasoned that they did not form an integral part of Community law. From the perspective of EU law, especially in light of the autonomy of the Community legal order, this may be said to constitute a valid consideration. However, arguably, from an internationally inclusive point of view, the position held by the ECJ raises questions. In approaching this dilemma, this Article does not rely, as is often done these days, on the theory of legal pluralism, but on the more traditional notion of sovereignty. Through the lens of sovereignty, the contribution concludes that it is possible to find a rationale that reconciles European and international law in cases like Intertanko and Kadi.

The General Provisions of the Charter of Fundamental Rights of the European Union

Abstract: The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional - or Supreme - Courts of the Member States of the Union and the European Court of Human Rights).

EU Accession to the ECHR: Competence, Procedure and Substance

Abstract: The issues raised by EU Accession to the ECHR have already generated a valuable and growing literature. This article seeks to contribute to this literature. The discussion begins with an overview of the European Union’s competence to accede to the European Convention on Human Rights, and the process by which the Accession Agreement was negotiated. The focus then shifts to analysis of whether the EU needs its own Charter of Rights in addition to membership of the ECHR. This is followed by examination of a range of procedural issues raised by EU accession to the ECHR. This includes the choices open to claimants when pursuing rights-based claims and the constraints placed on those choices resulting from EU accession to the ECHR. It will be seen that accession raises difficult issues concerning who should be the respondent and co-respondent in any particular case, and the manner in which a case concerning Convention rights is routed to the European Court of Human Rights. The new schema will moreover generate problems of delay.The final section of the article addresses some of the prominent substantive issue raised by EU accession to the ECHR. This includes a re-assessment of the case law defining the relationship between the EU and the ECHR prior to accession and evaluation of the extent to which it is relevant post accession; discussion of the impact of accession on the autonomy of EU law; and consideration of the way in which the ECHR rights and Charter rights will interact in the future.