The Application of European Competition Law in the Financial Services Sector

An evaluation of the Commission’s State aid control demonstrates its effectiveness to stabilise the financial sector, but the imposed restructuring plans including divestitures and behavioural commitments have not been as beneficial to the competitiveness of the sector.

Also antitrust enforcement in the sector has attracted much interest with the Court of Justice calling for a restrictive interpretation of the restriction ‘by object’ notion in Groupement des Cartes Bancaires, while the Commission continues to pursue infringements in relation to interest rate derivatives.

As regards merger control, the Commission mainly dealt with simplified cases, while the General Court dismissed on all grounds Deutsche Börse’s action for annulment against the Deutsche Börse/NYSE prohibition decision.

The E-Commerce Sector Inquiry: Can It Stop National Competition Authorities from Adopting an Overly Restrictive Approach?

In the past years, some national competition authorities have adopted a restrictive approach as regards on-line practices in the distribution of goods and services in the European Union.

As a result of that approach, companies are facing increasing uncertainty as to the legality and enforceability of their distribution agreements.

A question is to what extend the situation will be changed with the e-commerce sector inquiry launched by the European Commission on 6 May 2015.

Gro Nystuen, Stuart Casey-Maslen and Annie Golden Bersagel (Eds), Nuclear Weapons under International Law

Separating Protection from Politics: The UN Security Council, the 2011 Ivorian Political Crisis and the Legality of Regime Change

The relationship between the United Nations (UN) and its Member States is under constant evolution, in particular with regards to the demarcation of the state’s sovereignty. The global movement towards action against genocide, crimes against humanity, war crimes and ethnic cleansing has encroached substantially upon what would traditionally have been considered ‘matters which are essentially within the domestic jurisdiction’ of a state; the parameters of the Security Council’s power to ‘maintain or restore international peace and security’ is consequently of much contestation and negotiation. This article discusses the involvement of the Security Council through its peacekeeping force, the UN Operation in Cote d’Ivoire (UNOCI), in the Ivorian political crisis of 2011, and its impact upon the line dividing ‘domestic jurisdiction’ and ‘international peace and security’. Specifically, the article discusses the actions of UNOCI and its alleged participation in the removal of the government of Laurent Gbgabo from power, with reference to its Security Council mandate and the practical realities concerned with realising the civilian protection portion of its mandate. The article argues that regime change may be a necessary strategy in tackling government-committed atrocities. Moreover, with reference to the principle of self-determination, the article argues that Security Council-initiated regime change is within the boundaries of the Council’s legal power. Finally, the article discusses its practical ramifications, with reference to the conflict over sovereignty arising between ‘Western’ states and the so-called ‘BRICS’ (Brazil, Russia, India, China and South Africa) countries.

The Arms Trade Treaty: Pursuit for the Effective Control of Arms Transfer

The General Assembly of the United Nations (UNGA) adopted the Arms Trade Treaty (ATT) on 2 April 2013, which entered into force on 24 December 2014. The process towards the adoption of the ATT draws the attention of the international disarmament community because the negotiation of the ATT failed to agree on the treaty text twice at diplomatic conferences, due to its rigid consensus rule before the adoption of the ATT by vote in the UNGA. This study first describes the ATT negotiation as an example of international law-making process, especially from three cardinal viewpoints: (i) the decision-making by consensus stipulated in its rules of procedure; (ii) the role of the UNGA in the adoption of the ATT; and (iii) the contribution of the NGOs to the treaty negotiation. This article further examines the result of the negotiation, the agreed text of the ATT, focusing on the act transfer, which is the key concept of the ATT. This analysis includes the comparative studies of the precedents set by other disarmament treaties and also other issues related to the act of transfer in the ATT. One of the interesting issues is the language of safeguards contained in the clause for the act of transfer, which is also regarded as a loophole along with the ambiguity in the ATT. Consequently, this article concludes that the language of safeguards and the ambiguity in the ATT are ‘necessary evils’ for the universalisation of the ATT and it also proposes possible solutions in the quest for effective control of arms transfer through the ATT.

Detentions by Armed Opposition Groups in Non-International Armed Conflicts: Towards a New Characterization of International Humanitarian Law

This article investigates a particular armed opposition groups’ behavior: detentions during hostilities. This is an important concern since these non-state actors repeatedly deprive persons of liberty during armed conflicts. Interestingly, international humanitarian law (IHL) does not explicitly address such actions, thus seemingly leaving them to be regulated by the domestic law of the State concerned which, in general, only authorizes its own agents to carry out such acts. Therefore, armed opposition groups could never detain individuals legally in a non-international armed conflict.

Nonetheless, this can be inconsistent in the application of the principle of equality of belligerents, which affirms that all parties to an internal armed conflict have the same scope of rights regardless of their cause. In the following pages, a number of arguments focusing on real-life scenarios will be presented in order to show that, despite not being explicit, armed opposition groups are logically and implicitly authorized by IHL to detain individuals who are engaged in an armed conflict against them.

Editorial

Using Force Against Terrorists ‘Outside Areas of Active Hostilities’–The Obama Approach and the Bin Laden Raid Revisited

More than 13 years after the launch of Operation Enduring Freedom, the focus of US counterterrorism operations has gradually shifted from Afghanistan and Pakistan to the Arabian Peninsula, Somalia and Northern Africa. The use of drones and Special Forces in these regions causes difficult problems under international law. In particular, it is often far from clear whether a specific attack or raid triggers application of the law of armed conflict. The White House, therefore, issued a policy guideline in 2013, which states that lethal force will be used ‘outside areas of active hostilities’ only against targets that pose a ‘continuing, imminent threat’ to US persons. This policy reflects a conception of the right to self-defence according to which a state may target particularly dangerous persons irrespective of their status under international humanitarian law or human rights law (‘self-defence targeting’). It is a characteristic feature of the Obama administration’s approach to pick and choose from the legal concepts of self-defence and armed conflict in order to design a flexible normative framework for its operations against Al Qaeda and other extremist groups abroad. The present article focuses on different facets of this approach and shows how both concepts are utilized to justify such operations. The killing of Osama bin Laden in May 2011 was a particularly instructive case since it raised a variety of issues under jus ad bellum and jus in bello.

Conceptualizing Terrorism: International Offence or Domestic Governance Tool?

Crimes against humanity, war crimes and genocide are increasingly subject to prosecutions by international tribunals. Should then terrorism, as a substantive offence, be equally prosecuted internationally? Or is it a different kind of ‘animal’? This article argues that terrorism does not belong within the realm of international criminal law. On the surface, it is the lack of internationally agreed definition of terrorism and its domestic law origins that set it apart from the notions of crimes against humanity, war crimes and genocide. These crimes, in contrast with terrorism, are rooted in international law and denote consensus within the international community about the acts it has not tolerated since the time of Nuremberg and Tokyo processes. Digging just a little deeper, the divergence, which is best explained using the language of criminology, stems from the political nature of the war on terror. The intensification of the fight against terrorism is a response to public demand for more security. Consequently, terrorism is a policy offence utilized by states in pursuit of broader governance objectives. International criminal law is not a suitable mechanism for satisfying the need for more security because its main goal is symbolic and lies elsewhere in promoting the rule of law and fighting the culture of impunity.

Developing IAEA Safeguards: An Institutional Perspective on the State-level Concept

The implementation of International Atomic Energy Agency (IAEA) safeguards in the context of the State-level Concept (SLC) has faced significant opposition from a group of IAEA Member States. This article explores the possible reasons for such opposition. It focuses on the issues of the scope of the mandate of the IAEA and on right to use third-party information to draw safeguards conclusions. Both are controversial aspects of safeguards implementation that are connected to the SLC. Analysing these issues from a legal–institutional perspective, this article concludes that neither the IAEA nor its organs were acting ultra vires in incorporating these elements into the SLC. The fact that the institutional framework of the IAEA is sufficiently flexible to allow these developments despite minority opposition, however, camouflages the fact that this can cause problems on a deeper institutional level. Developing safeguards practice may have legal effects on IAEA Member States, which means implementing safeguards in the context of the SLC without consent may constitute a sovereignty issue. This means the IAEA should pay extra attention to achieve and maintain consensual support for its actions to avoid an institutional power struggle over the SLC.