CYIL 2012

Czech Yearbook of Public & Private International Law Č eská ro č enka mezinárodního práva ve ř ejného a soukromého

Vol. 3

www.cyil.eu

Č eská spole č nost pro mezinárodní právo Czech Society of International Law

Praha 2012

Editor-in-Chief: Professor PAVEL ŠTURMA Reviewers: PPrrooffeessssoorr MDAALHIBUOLERNJÍALEHKOFMANN PP rr oo ff ee ss ss oo rr MP AOVNE ILK ŠATPUARUMKAN E R O V Á

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA Č R

Czech yearbook of public & private international law = Č eská ro č enka mezinárodního práva ve ř ejného a soukromého. Vol. 3. – Praha : Č eská spole č nost pro mezinárodní právo, 2012. – vi, 380 s. Vydáno v nakl. Eva Rozkotová, Beroun ISBN 978-80-87488-09-6 (Eva Rozkotová)

341.1/.8 * 341.9 * (437.3) – public international law – public international law – Czechia – private international law – private international law – Czechia – yearbooks – mezinárodní právo ve ř ejné – mezinárodní právo ve ř ejné -- Č esko – mezinárodní právo soukromé – mezinárodní právo soukromé -- Č esko – ro č enky

341 – International law [16] 341 – Mezinárodní právo [16]

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BOARDS AND EDITORS

EDITORIAL BOARD Dr. VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Dr. VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Assoc. Prof. NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law

Professor RAINER HOFMANN Goethe University, Frankfurt/Main

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Professor VLADIMÍR KOPAL West-Bohemian University, Faculty of Law Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris Dr. PETER TOMKA President, International Court of Justice, The Hague EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS Professor MAHULENA HOFMANN

SES Chair in Space Communications and Media Law, University of Luxembourg Max Planck Institute for Comparative Public Law and International Law, Heidelberg Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law Institute of Law of the Academy of Science of the ČR

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CONTENTS

PREFACE Pavel Šturma

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ABBREVIATIONS

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I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS Delimitation between the Common Foreign and Security Policy Competence and other EU’s External Polices after the Treaty of Lisbon: Where does Art. 40 TEU leave us? Emil Ruffer The Right of the Child to Liberty and the Administrative Detention of the Child in the Immigration Situation Dalibor Jílek European Atomic Energy Community and the Nuclear Third Party Liability Jakub Handrlica II. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW The Dublin System from a European Human Rights Perspective Harald Christian Scheu Human Security in Times of War or Towards a Fourth Wawe of Humanization of International Humanitarian Law? Veronika Bílková Human Rights Protection and Multiculturalism: A Montenegro Perspective Ivana Jelić Disarmament and Humanitarian Law in Relation to Conventional Weapons Jan Ondřej 133 Admissibility Criteria for Lodging an Application with the ECHR: Short and Clear Alla Tymofeyeva 145 III. INTERNATIONAL CRIMINAL LAW “Succeeding Generations” in the United Nations Charter and their Role for the United Nations Criminal Justice Studies Sławomir Redo 157 I nternational Law on Immunities Accorded to High-Ranking State Officials Petra Baumruk 173 Modern Slavery and current International Law Jana Ondrovičová 191 87 107 121 3 15 41 Armed Intervention in Contemporary International Law Josef Mrázek 63

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IV. VIEWS ON INTERNATIONAL INVESTMENT AND TRADE LAW Parallel National and International Laws – Czech Law and the Proposed Common European Sales Law Larry A. DiMatteo Crossing the Rubicon: On the Correlation of the Principle of Transparency and Confidentiality of Arbitral Proceedings within the Area of International Investment Arbitration Zuzana Jahodníková – Ľudovít Mičinský V. CZECH PRACTICE OF INTERNATIONAL LAW The Czech Republic and the European Court of Human Rights in 2011 Ľubomír Majerčík – Anna Matušinová – Hubert Smekal The Activities of the Sixth Commitee During the 66 th Session of the UN General Assembly: Business as Usual? Petr Válek The International Law Commission at the Beginning of its New Quinquennium Pavel Šturma European Union – Korea Free Trade Agreement Edita Šedová – David Müller

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List of Ratified International Treaties which Entered into Force for the Czech Republic from 1 st August 2011 Till 31 st July 2012 Milan Beránek VI. SHORTER ARTICLES AND NOTES On the Occasion of the 85 th Birthday of Professor Čestmír Čepelka Pavel Šturma

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Professor Vladislav David on his 85th Birthday Ondřej Sváček

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The Prague Student Summit Laura Havlová – Libor Jordán

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VII. BOOK REVIEWS

Gerloch A., Šturma P. et al. The Protection of Fundamental Human Rights and Freedoms during Changes in Law in the outset of the 21st Century in the Czech, European and International Contexts (Ján Svák)

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Šturma, P., Čepelka, Č., Balaš, V. The Law of Treaties (Theodor Klán)

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VIII. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY

Zuzana Trávníčková

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PREFACE

Dear Readers, You have in your hands the third volume of the Czech Yearbook of Public & Private International Law (CYIL). This Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. According to its Statute, the CSIL covers both Public and Private International Law in its Czech Yearbook, including some aspects of European law. The CSIL publishes the Yearbook both in printed and electronic versions (www. cyil.eu). For the third volume, we are proud to offer the electronic version in a user friendly format of the E-book, suitable for PCs, notebooks and tablets. The Czech Yearbook stems from the academic tradition but it is also open to new technologies. However, the content is or should be, in our opinion, as important as the form, if not even more important. From this point view, Volume 3 (2012) keeps the standards set in the first two volumes. The variety of studies and articles in this volume covers many issues of contemporary International and European law, including EU Common Foreign and Security Policy, rights of child and immigration law, and nuclear liability. An important number of articles deal with international human rights law, international humanitarian law and international and European asylum law. Some contributions concern various issues of international criminal law and criminal justice. According to its title, Volume 3 of the CYIL also covers certain aspects of international economic law (investment and trade law) as well as private and commercial law. Moreover, the publication also presents topical information on Czech cases before the European Court of Human Rights in 2011, the activities of the Sixth Committee at the 66 th session of the UN General Assembly and, most recently, the work of the International Law Commission in 2012. As usual, the authors of this publication come from the leading Czech academic and other institutions, such as Charles University in Prague, Masaryk University in Brno, Palacky University in Olomouc, the Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs and its Institute of International Relations, the Ministry of Industry and Trade, as well as from private law firms. However, the editors keep the Czech Yearbook open to authors from abroad. More than in the two previous years, this volume includes contributions of foreign professors and researchers, coming from or teaching in Austria, Iceland, Montenegro, Poland, Slovakia, Ukraine and the USA. In keeping the Yearbook open, we want it to become not only Czech but also a European and international project, the Prague-based platform for dialogue of scholars and practitioners of international law.

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This publication appears thanks to the financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for generous financial support from the Prague branch of the law firm Weil, Gotshal and Manges. We wish that this volume of the Czech Yearbook finds many interested readers and we are looking forward to new authors and new contributions for the next volume.

Prof. Pavel Šturma Editor-in-Chief

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ABBREVIATIONS API – Protocol Additional to the Geneva Conventions of 1949, relating to the Protection of Victims of International Armed Conflicts of 1977 BITs – Bilateral investment treaties CCIT – Comprehensive Convention on International Terrorism CESL – Common European Sales Law CIETAC – China International Economic and Trade Arbitration Commission CFSP – Common Foreign and Security Policy CISG – United Nations Convention on Contracts for the International Sale of Goods CPA – Czech Consumer Protection Act CRC – Convention on the Rights of the Child CJEU – Court of Justice of the EU DDA – Doha Development Agenda DRC – Democratic Republic of Congo EC – European Commision ECJ – European Court of Justice ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR – European Court of Human Rights ECOFIN – Economic and Financial Committee ECSC – European Coal and Steel Community EEC – European Economic Community EU – European Union Euroatom – European Atomic Energy Community EU/EC – European union/ European Commision FTA – Free Trade Agreement FUEN – Federal Union of European Nationalities GDP – Gross Domestic Product GED – General Educational Development programs GPA – WTO Agreement on Government Procurement

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GRULAC – The Latin American and Caribbean Group (United Nations Regional Group) HRC – Human Rights Council IBFD – International Bureau of Fiscal Documentation ICC – International Criminal Court ICISS – International Commission on Intervention and State Sovereignty ICCPR – International Covenant on Civil and Political Rights ICJ – International Court of Justice ICRC – International Committee of the Red Cross ICSID – International Centre for Settlement of Investment Disputes ICTY – International Criminal Tribunal for the former Yugoslavia ICTR – International Criminal Tribunal for Rwanda ILC – International Law Commission NAFTA – North American Free Trade Agreement NATO – North Atlantic Treaty Organization NCCUSL – National Conference of Commissioners on Uniform State Laws NGOs – non-governmental organizations OECD – Organisation for Economic Co-Operation and Development OIC – Organization of the Islamic Cooperation OJ – Official Journal of EU OSCE – Organization for Security and Co-operation in Europe PSS – Prague Student Summit SCSL – Special Court for Sierra Leone SMEs – Small-to-Medium Sized Enterprises ILO – International Labour Organization IHL – International Humanitarian Law IHRL – International human rights law ILA – International Law Association MFA – Ministry of Foreign Affairs of the Czech Republic

SSR – United Nations Justice and Security Sector Reform TEC – Treaty establishing the European Community

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TEU – Treaty on Euroean Union TFEU – Treaty on the European Functioning of the European Union TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights UCC – American Uniform Commercial Code

UK – United Kingdom UN – United Nations

UNCITRAL – United Nations Commission on International Trade Law UNESCO – United Nations Educational Scientific and Cultural Organization UNHCR – United Nations High Commissioner for Refugees UNICEF – United Nations Children’s Fund UNDP – UN Development Program

UNGA – United Nations General Assembly UNSC – United Nations Security Council UNSG – UN Secretary-General USA – United States of America USSR – Union of Soviet Socialist Republics WHO – World Health Organization WIPO – World Intellectual Property Organization WTO – Word Trade Organization

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I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS

DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE AND OTHER EU EXTERNAL POLICES AFTER THE TREATY OF LISBON: WHERE DOES ARTICLE 40 TEU LEAVE US? Abstract: This article explores the nature and scope of the Common Foreign and Security Policy (CFSP) after the entry into force of the Treaty of Lisbon and its relationship with other EU external policies. It starts with a brief description of the nature of the specific CFSP competence and then describes the situation before the Treaty of Lisbon, when the CFSP was rather limited by the “non-affectation” clause in (former) Art. 47 TEU. The situation changed substantially with the Treaty of Lisbon, since the CFSP was made equal to other external policies under the TFEU in an attempt to create a more coherent framework for the Union’s external action. However, due to the common set of Union objectives in external action, it is now difficult to ascertain whether and to what extent the CFSP legal basis should be used, since the standard “centre of gravity” test employed by the Court of Justice does not work properly in the new context. Possible theoretical approaches and their practical consequences and problems are discussed in detail, as well as the pending case C-658/11 European Parliament v. Council, which illustrates the tensions among the EU institutions in the area of external action and will have significant impact on the delimitation of the CFSP in the future. Resumé: Tento článek zkoumá povahu a rozsah Společné zahraniční a bezpečnost ní politiky (SZBP) po vstupu Lisabonské smlouvy v platnost a její vztah k ostatním vnějším politikám EU. Na úvod je stručně popsána povaha specifické pravomoci SZBP a dále rozebrána situace před Lisabonskou smlouvou, kdy byla SZBP poněkud omezena klauzulí „nedotknutelnosti“ v (bývalém) čl. 47 SEU. Situace se podstatně změnila s Lisabonskou smlouvou, neboť SZBP byla postavena naroveň ostatním vnějším politikám obsaženým v TFEU, ve snaze o vytvoření koherentnějšího rámce pro vnější činnost Unie. Nicméně vzhledem ke společnému souboru cílů pro vnější činnost Unie je nyní obtížné určit, zda a v jaké míře by měl být použit právní základ SZBP, neboť standardní test „těžiště“ opatření, používaný Soudním dvorem, není v novém kontextu plně použitelný. Podrobněji jsou diskutovány možné teoretické přístupy a jejich praktické důsledky a problémy, jakož i probíhající řízení ve věci C-658/11 Evropský parlament v. Rada, jež ilustruje napětí mezi orgány EU v oblasti vnějších vztahů a bude mít významný dopad na vymezení SZBP do budoucna. 1 The author is the Director of the EU Law Department at the Ministry of Foreign Affairs of the Czech Republic (MFA). However, the opinions expressed in this article are solely those of the author and do not necessarily correspond with the official position of the MFA and do not bind this institution in any way. This article is based on a conference paper presented at the international conference “ New Challenges for the European Union ”, held on 9-10 November 2011 at the University of Economics in Prague. Emil Ruffer 1

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EMIL RUFFER CYIL 3 ȍ2012Ȏ Key Words: Treaty of Lisbon, European Union, Common Foreign and Security Policy, European Community, EU legal personality, EU external policies, external competence, external action, delimitation, legal basis, development cooperation, Court of Justice of the European Union On the Author: Emil Ruffer was born in Prague in 1974. He graduated from the Charles University Law School in 2001. He also studied English and American Literature at the Charles University Faculty of Arts. From 1996 to 1997 he studied European Law and Politics at the Cardiff Law School under the Tempus (PHARE) programme; for the academic year 2000 – 2001 he received Sasakawa Young Leaders Fellowship for studies of European and International Public Law at the Humboldt University in Berlin. He has been working in the EU Law Department of the Ministry of Foreign Affairs of the Czech Republic since 2003, and became its director in 2008. During the United Kingdom’s Presidency in the EU (6-12/2005) he was posted at the Czech Embassy in London. In 2007 he received a Ph.D. from Charles University Law School (doctoral programme Public Law I: European, International and Constitutional Law) upon completing research in the area of legal aspects of EU external relations, which is one his fields of specialisation. In 2011 he spent 6 months as a Visiting Fulbright Scholar at Fordham Law School in New York. He is married with one son. One of his favourite plays is Tom Stoppard’s Rock’n’Roll (2006), which just about sums up his theatrical and musical tastes (with some bits of Shakespeare, Handke, Creation Records and New York post-punk). I. Introduction The Common Foreign and Security Policy (hereinafter the “CFSP”) is one of the “survivors” of the Treaty of Lisbon, which allegedly removed the former pillar structure of the European Union, 2 explicitly confirmed the single legal personality of the Union 3 and newly defined the relationship between the Treaty on European Union (hereinafter the “TEU”) and the Treaty on the Functioning of the European Union (hereinafter the “TFEU”). 4 The Union also acquired a single set of aims and objectives ( cf. Art. 3 TEU in general and Art. 21 TEU for external action), aimed at achieving unity and coherence of external action. In this context, a new wording of “pre-Lisbon” Art. 47 TEU (now Art. 40 TEU) was introduced, which defines the relationship between the CFSP and other Union policies, including the external policies such as development cooperation. 2 While the CFSP “survived” the constitutional changes introduced by the Treaty of Lisbon and maintained its special position in the TEU, the Justice and Home Affairs pillar (Provisions on Police and Judicial Cooperation in Criminal Matters) was not so lucky and became fully integrated in the TFEU structure, along with other Union policies. 3 Art. 47 TEU stipulates: “ The Union shall have legal personality .” According to Art. 1(3) TEU, the Union replaced and succeeded the European Communities. 4 Under Art. 3(1) TEU “Those two Treaties [TEU and TFEU] shall have the same legal value .” (emphasis added).

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DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… However, the distinction between CFSP measures and measures under other Union external policies is still of crucial importance, since special procedures (including the general requirement of unanimity, subject to exceptions) are applicable in the area of the CFSP ( cf. Art. 23 ff. TEU). Whereas prior to the Treaty of Lisbon there was a hierarchical relationship between the Community (1 st pillar) policies and the CFSP (2 nd pillar) and the former was given precedence, the new Art. 40 TEU has changed this relationship. Now both the CFSP and other Union policies are on an equal footing and shall not be mutually affected – i.e. Union policies under the TFEU are protected from interference by CFSP measures, but equal protection is also provided vice versa for the CFSP. Nevertheless, there is a remaining fundamental question underlying the application of Art. 40 TEU: what should the criteria be for identifying the correct legal basis for acts falling under either the CFSP or other Union external policies? The strict criteria set out by the Court of Justice of the EU (hereinafter the “CJEU”) in the case C-91/05 Commission v. Council (‘ECOWAS’) 5 (distinction between the main and secondary/incidental objective of the measure) were useful in the pre Lisbon state of affairs, but will be difficult to apply in a situation where the Union has a single set of objectives for its external action. II. The nature of CFSP competence Despite the fact that the Treaty of Lisbon provided the Union with a comprehensive catalogue of categories and areas of competence, 6 the nature of the CFSP remains slightly ambiguous. This ambiguity stems from the wording and placement of Art. 2(4) TFEU, which plainly states: “The Union shall have competence , in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy , including the progressive framing of a common defence policy.” (emphasis added) In contrast to other categories of Union competences, the precise nature of CFSP competence (whether it is exclusive/shared/supporting, coordinating or supplementary) is not explicitly spelled-out. Nevertheless, there is a general agreement among commentators that CFSP competence cannot be of exclusive nature. 7 In my view, we could use an analogy with a shared parallel competence, which by definition cannot become an exclusive competence upon its exercise by the Union, i.e. the pre emption effect does not apply. 8 Or we can simply label the CFSP as “a special type of 5 C-91/05 European Commission v. Council of the European Union [2008] ECR I-3651. 6 Title I (Categories and Areas of Union Competence), Art. 2-6 TFEU. 7 See e.g. Eeckhout, P.: The EU’s Common Foreign and Security Policy after Lisbon: From Pillar Talk to Constitutionalism , In: Biondi, A., Eeckhout, P., Ripley, S.: EU Law After Lisbon , Oxford University Press, 2012, p. 268. 8 This is also the case of the external competence e.g. in the field of environment ( cf. Art. 191(4) TFEU) or development cooperation ( cf. Art. 209(2) TFEU). According to P. Van Elsuwege, CFSP competence

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EMIL RUFFER CYIL 3 ȍ2012Ȏ competence”, due to its solitary standing in Art. 2(4) TFEU and on account of the wording of Art. 24(1) TEU, which emphasizes that the CFSP is subject to “ specific rules and procedures” . 9 Suffice it to say at this point that the ambiguities related to the CFSP only start with its specific nature. They further extend to its scope 10 and its interplay with other Union external policies, which we shall try to explore below. III. CFSP before the Treaty of Lisbon – feeling slightly inferior? In the pre-Lisbon days of the (supranational) Community, the (intergovernmental) European Union and the metaphor of the “Greek Temple” pillar structure – introduced into the discourse to bring some sense into the complex constitutional arrangement – the CFSP seemed to be one of the “unequal” pillars. This relationship was based on the wording of Art. 47 (pre-Lisbon) TEU, whose possible interpretation pointed in the direction that precedence (or supremacy) was to be given to Community policies: “ Subject to the provisions amending the Treaty establishing the European Economic Community with a view to establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them. ” (emphasis added) The CFSP in this understanding was a “residual” policy (at least in legal terms), whose provisions could have been used as a legal basis only if a Community legal basis under the Treaty establishing the European Community ( hereinafter the “TEC”) was nowhere to be found. However, it should be pointed out that the above reading of the hierarchical relationship between the Community and the CFSP pillars offers a somewhat simplified and distorted picture. As A. Dashwood has argued, in a very persuasive manner, “the CFSP competence embraces all areas of a foreign, security and defence policy” and given the broad scope of the attribution of competence in Art. 11(1) and 17(1) (pre-Lisbon) TEU, “[i]t cannot have been intention of the authors of the TEU to allow the scope and effectiveness of the CFSP, as explicitly there defined, to be restricted by Article 47, above all when considerations of the security of the might be regarded as “a non-defined, sui generis category of competences (...), which is not subject to pre-emption.” See Van Elsuwege, P.: EU External Action After The Collapse Of The Pillar Structure: In Search Of A New Balance Between Delimitation And Consistency , CML Rev. 47, 2010, p. 991. 9 Cremona, M.: The Two (or Three) Treaty Solution: The New Treaty Structure of the EU , In: op. cit. supra in note 7, p. 50. 10 In Art. 24(1), first subparagraph, TFEU frames the scope of the CFSP in fairly generous terms, as a sort of ‘mother of all external competences’: “ The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security , including the progressive framing of a common defence policy that might lead to a common defence. ” (emphasis added).

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DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… Union, or of international peace and security, are in play.” 11 The relationship between the Community and CFSP competencies should have been, therefore, more of a complementary nature instead of a strict hierarchy and guided by the principle of consistency of the Union’s external activities. 12 Despite the above well argued concept presented by A. Dashwood, the relationship established in the case-law of the CJEU and confirmed in its judgement in ‘ECOWAS’ case offered a slightly different picture. The Court rather inclined to see the Community and the CFSP as “watertight compartments in the EU vessel” 13 and stated: “ Contrary to what is submitted by the United Kingdom Government, a measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty within the meaning of Article 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevents or limits the exercise by the Community of its competences . It is apparent from the case-law of the Court that, if it is established that the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, have as their main purpose the implementation of a policy conferred by the EC Treaty on the Community, and if they could properly have been adopted on the basis of the EC Treaty, the Court must find that those provisions infringe Article 47 EU .” 14 In light of this interpretation of Art. 47 (pre-Lisbon) TEU, in which this provision served as a guardian of Community policies, the correct legal basis was to be established according to the aim and content of the proposed measure. The CJEU could thus use the standard “centre of gravity” test, based on the distinction between the main and secondary/incidental objective of the measure: “If examination of a measure reveals that it pursues a twofold aim or that it has a twofold component and if one of those is identifiable as the main one, whereas the other is merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component. ” 15 11 Dashwood, A.: Article 47 TEU and the relationship between first and second pillar competences , In: Dashwood, A., Maresceau, M. (eds.): Law and Practice of EU External Relations , Cambridge University Press 2008, p. 75. 12 Ibid., p. 71-72. 13 Eeckhout, P.: External Relations of the European Union: Legal and Constitutional Foundations , Oxford University Press, 2004, p. 146. 14 C-91/05 Commission v. Council , para. 60 (emphasis added). The Court only confirmed its previous statements in case C-176/03 Commission v Council [2005] ECR I-7879, paras. 51 and 53, and case C-440/05 Commission v Council [2007] ECR I-9097, paras. 69 to 74. 15 Ibid., para. 77 (emphasis added). The CJEU also quotes its relevant previous jurisprudence to this effect, i.e. case C-211/01 Commission v Council [2003] ECR I-8913, para. 39; case C-338/01 Commission v Council [2004] ECR I-4829, para. 55, and case C-94/03 Commission v Council [2006] ECR I-1, para. 35; and with regard to the application of Art. 47 (pre-Lisbon) TEU, case C-176/03 Commission v Council , paras. 51 to 53, and case C-440/05 Commission v Council, paras. 71 to 73).

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EMIL RUFFER CYIL 3 ȍ2012Ȏ This approach enabled the CJEU to analyse a measure from the perspective of its main aim (objective) and corresponding content and consequently establish the correct legal basis. Even though the whole approach as well as the concrete assessment by the CJEU in certain cases could be rightly criticised ( ECOWAS case being surely one of them), 16 the Court followed clearly established criteria and provided the necessary level of legal certainty for Union institutions. But with the Treaty of Lisbon, “Things Have Changed”. 17 IV. “Constitutional reshuffle” – CFSP under the Treaty of Lisbon The Treaty of Lisbon fundamentally changed the relationship between the CFSP and other Union policies, since it introduced a mutual “non-affectation” clause, which removed the previous hierarchical relationship charged in favour of Community policies. As already implied above, there is a perfectly legitimate reason behind this constitutional change, since the Union has acquired a single legal personality with a single set of aims and objectives, and on top of that one of the imperatives of the Treaty of Lisbon was to achieve a coherence of external action. However, this much advertised and no doubt much desired coherence and unity of external action might be difficult to achieve, given the very nature of the CFSP as a “hidden” pillar which has not been completely dismantled, and is still subject to special rules and procedures. So how much comfort does this new architecture for the 21 st century offer? IV.1 Art. 40 TEU – equality without delimitation? Art. 40 TEU outlines the mutual “non-affectation” clause in the following terms: “ The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this [CFSP] Chapter. ” What is clear from the wording of Art. 40 TEU is the equality of both the CFSP and other Union policies, which reflect the same (equal) legal force of both founding Treaties – TEU and TFEU. 18 What is rather unclear are the criteria for distinguishing between the CFSP and other EU policies. 16 See e.g. Heliskoski, J.: Small Arms and Light Weapons Within the Union’s Pillar Structure: An Analysis of Article 47 of the EU Treaty , E. L. Rev. 2008, 33(6), 898-912. 17 A brilliant Bob Dylan song from the “Wonder Boys” original soundtrack, released as a single on Columbia Records label on 1 May 2000. 18 Art. 1(3) TEU.

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DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… The criteria set out by the Court in ECOWAS case will be of hardly any help, since the “centre of gravity” test (focused on main and ancillary objectives of a certain measure) cannot be used effectively in a context of the common set of aims and objectives of the Union’s external action. 19 In a situation where we allocate the main objective of a measure (e.g. to “ preserve peace, prevent conflicts and strengthen international security ” within the meaning of Art. 21(2)(c) TEU), but at the same time we identify another component of the measure which is not merely incidental (e.g. to “ foster the sustainable economic, social and environmental development of developing countries ” within the meaning of Art. 21(2)(d), thus falling under the development cooperation under Art. 208 TFEU), we face the inevitable dilemma: which legal basis should take precedence? 20 Consequently, we find ourselves in a somewhat paradoxical situation, where the Court should presently also determine whether a measure adopted under one of the Union’s polices in TFEU does not encroach upon the CFSP, thereby protecting this specific area, but cannot rely on any strict criteria to this end. 21 Nevertheless, some guidelines or a set of criteria will be needed, regarding the extent of the powers of the EU institutions for the exercise of the Union’s competences under the CFSP. Moreover, any choice of a CFSP provision(s) as a legal basis “ must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure ”. 22 The search for the relevant criteria can thus begin. IV.2 In search of lost criteria at the imaginary boundary In theory, we could consider the CFSP as a lex generalis for the Union’s external action which should be, as a rule, used as a legal basis unless there is a specific competence under other Union policies ( lex specialis ). However, as J. Heliskoski rightly pointed out, such distinction will not help in situations where only part of the measure falls under the CFSP and the remaining part under other Union policies. 23 This absence of clear and precise criteria in such situations can result in a further blurring of a boundary between the CFSP and other Union policies, which would in turn diminish the legal certainty and predictability of the Union’s external action. 19 For a more detailed account, see Van Elsuwege, op. cit. supra in note 8, p. 1003-1004. 20 In the “pre-Lisbon” setting, the answer given by the CJEU was not so clear cut either: the TEC competence precluded the measure from being taken under the CFSP, due to (former) Art. 47 TEU (C-91/05 Commission v. Council , paras. 108-109), but the Court remained silent on whether the TEC legal basis should have been preferred for adoption of such measure. 21 This ironic result of the Treaty of Lisbon is also highlighted by De Baere, G.: Constitutional Principles of EU External Relations , Oxford University Press, 2008, p. 299. 22 Case C-176/03 Commission v Council , para. 45. 23 Heliskoski, J., op. cit. supra in note 16, p. 911. According to this author, the solution could be only division of the measure into two independent parts – a CFSP act and an act under other Treaty policies. The same suggestion is made by P. Eeckhout, but he also points out that “in the case of an act with a single content and a dual purpose”, splitting such act in two might not be workable in practice. See Eeckhout, op. cit. supra in note 7, p. 276.

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EMIL RUFFER CYIL 3 ȍ2012Ȏ Another and much more viable perspective is offered by A. Dashwood, who stresses the fact that the CFSP competences under Chapter 2 Title V TEU are confined to foreign policy in the sense of political, security and defence aspects of international relations. It should therefore not be understood in a general sense, as covering the whole range of the Union’s competence in the external sphere, for which the Treaty of Lisbon has introduced a new term, namely ‘the Union’s external action’. 24 CFSP measures can thus be used to attain political or security objectives, whereas, for example, development cooperation competence under the TFEU should be used for actions focused on development objectives. However, any determination of a legal basis for particular external action will continue to require consideration of its aim as well as of its content, though the choice may be less clear cut and there is likely to be a proliferation of ‘overlap effects’. 25 To put it in other words: with the common set of objectives for the Union’s external action, CFSP measures will have to be ‘extracted’ from this common framework, bearing in mind the nature of the CFSP as being confined mainly to political, security and defence aspects of international relations. It can be expected that CFSP measures will have ‘side effects’ – they might affect other objectives of EU external action within the common set of objectives. However, this might not be an insurmountable problem from the perspective of Art. 40 TEU, since this provision only protects the relevant procedures and the extent of the powers of the institutions under the TEU and TFEU, respectively. 26 The crucial point is that the choice of a CFSP measure may incidentally affect other objectives of the Union’s external action (such as development cooperation), which can be closely interlinked, provided that it is consistent with other external policies. What it may not do is to wholly substitute the external action under the respective TFEU legal basis, which would amount to affecting the relevant TFEU procedures and infringing the extent of the powers of the EU institutions. It follows from the above that due to the existence of the EU single legal personality and the common set of external action objectives, the choice between the CFSP and other external policies might be much more influenced by the distinction between the procedures and the extent of involvement of the institutions, including the European Parliament (hereinafter also the “Parliament”). Nevertheless, this shift of focus does not solve the problem of the unchartered borderline between the CFSP and other external policies under TFEU, since the procedural argument can just substitute the substantive one (i.e. aim and content of the measure) and still generate future institutional disputes between the Council, the Commission and the Parliament. 27 24 Dashwood, op. cit. supra in note 11, p. 102. 25 Ibid., p. 103. 26 This is rather different from the “non-affectation” clause in (pre-Lisbon) Art. 47 TEU, which protected the competences under the TEC as such, without it being necessary to examine whether the CFSP measure actually prevented or limited the exercise of these competences by the Community (C-91/05 Commission v. Council , para. 60). 27 Such disputes would probably focus on the issue of whether it is justified and legitimate to use the

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DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… Moreover, the substance of any measure cannot be detached from the procedure for its adoption. The substance determines the choice of legal basis, and the procedure must then correspond to the legal basis, not the other way around. It is therefore barely conceivable to use, for example, a criterion of involvement of the Parliament (with reference to democratic legitimacy) and consequently choose the legal basis under the TFEU external competence where the ordinary legislative procedure applies, instead of a CFSP legal base. V. CFSP under attack ‘off the coast of Somalia’ It can hardly be surprising, given all the ambiguities regarding the delimitation of CFSP competence described above, that it came under attack. The legal challenge was actually brought by the European Parliament, but it is closely related to the Union’s activities in the framework of the military operation to fight acts of piracy and armed robbery off the Somali coast (operation ‘Atalanta’), 28 so the pirates are not entirely innocent in this respect. The action was brought by the Parliament on 21 December 2011. 29 It is aimed at Council Decision 2011/640/CFSP [ on the signing and conclusion of the Agreement between the EU and Mauritius on the conditions of transfer of suspected pirates and associated seized property ], 30 which authorised the approval of the above mentioned Agreement 31 on behalf of the European Union. The Parliament considers the Decision as invalid because it does not relate exclusively to the CFSP, as expressly provided for in Art. 218 (6), second paragraph, TFEU. The main legal argument of the Parliament is as follows: since the Agreement allegedly also relates to judicial cooperation in criminal matters, police cooperation, and development cooperation, covering fields to which the ordinary legislative procedure applies, it should have been concluded after obtaining the consent of the Parliament in accordance with Art. 218(6)(a)(v) TFEU. For this reason, submits the special procedure under the CFSP, without the involvement of the Parliament, or whether to make recourse to the ordinary legislative procedure. 28 Council Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (OJ L 301, 12. 11. 2008, p. 33, hereinafter as the “Joint Action”). 29 Case C-658/11 European Parliament v Council of the European Union , application published in OJ C 58, 25. 2. 2012, p. 6. 30 Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer (OJ L 254, 30. 9. 2011, p. 1, hereinafter the “Decision”). 31 Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer (OJ L 254, 30. 9. 2011, p. 3, hereinafter the “Agreement”).

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EMIL RUFFER CYIL 3 ȍ2012Ȏ Parliament, the Council has violated the Treaties by failing to choose the appropriate legal basis for the conclusion of the Agreement. Furthermore, the Parliament raises an alleged violation of Art. 218 (10) TFEU by the Council, since it did not inform the Parliament fully and immediately at the stages of negotiation and conclusion of the Agreement. As far as the effects of the contested decision are concerned, should the CJEU annul the contested Decision, the Parliament nonetheless proposes that the Court exercise its discretion to maintain its effects in accordance with Art. 264, second paragraph, TFEU, until such time as it is replaced. 32 The application of the Parliament in case C-658/11 aptly illustrates all the difficulties pertaining to the delimitation of the CFSP and the choice of the corresponding procedure. The Decision provides for conclusion of the Agreement, which constitutes an implementing measure within the meaning of Art. 12 of the Joint Action [ on the EU military operation Atalanta ]. It only seems logical that a CFSP measure is also implemented by a CFSP measure. In this context, the Parliament’s assertion that the Agreement relates to police and judicial cooperation in criminal matters seems strangely ill-conceived: the Agreement provides for the conditions of transfer of suspected pirates and associated seized property by the European Union-led naval force (‘EUNAVFOR’) to the competent authorities of Mauritius for the purpose of investigation and prosecution. 33 How this aim and content of the Agreement relates to police and judicial cooperation in criminal matters among the Member States’ authorities in the Area of Freedom, Security and Justice 34 remains a true mystery. As for the development cooperation, the Parliament might be trying to use the argument already discussed in the ‘ECOWAS’ case, i.e. that strengthening of security in a particular region also necessarily contributes to its development. If that was the case, I would argue that this connection is rather arbitrary and in any event, any effects of the Agreement on the development cooperation policy would be merely 32 Maintaining the effects of the Decision is important due to its direct link with the valid Agreement, which is binding on the Union as a matter of public international law. If the Decision were to be declared null and void without any transitional arrangements (which the CJEU is entitled to do under Art. 264 TFEU), the Union would still be bound by the Agreement under public international law, but would lack the necessary internal legal act which authorised the conclusion of the Agreement and performance of relevant obligations in the first place. 33 Art. 3(1) of the Agreement. 34 Art. 67(1) TFEU stipulates: “ The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States .” On judicial cooperation in criminal matters, Art. 82(1) TFEU states: “ Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83 .” Finally, the police cooperation is outlined as follows in Art. 87(1) TFEU: “ The Union shall establish police cooperation involving all the Member States’ competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences. ”

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DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… incidental. The CFSP would thus still constitute the proper legal basis, without infringing the development cooperation contained in the TFEU. VI. Conclusion Several options have been proposed by commentators, e.g. regarding CFSP as lex generalis used in situations when there are no specific policies in TEU or TFEU, which could be used as lex specialis , or considering the potential involvement of the European Parliament in the legislative procedure as an additional criterion for choosing the legal basis. No doubt the requirement of consistency of the Union’s external policies, stipulated in Art. 21(3) TEU, must also be taken into account. But despite all the efforts to reconcile the CFSP with other external policies, we still can expect tensions and potential conflicts between the institutions in implementing the new framework for EU external action under the Treaty of Lisbon. So where does Art. 40 TEU actually leave us? Currently we are left restlessly waiting at the gates of justice in Luxembourg, since the CJEU is dealing with this matter in the pending case C-658/11 Parliament v. Council . The Court thus has an excellent opportunity to give us much needed guidance on the application of Art. 40 TEU, which will be of crucial importance for all future activities of the Council in the framework of the CFSP.

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THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION OF THE CHILD IN THE IMMIGRATION SITUATION

Dalibor Jílek

Earl of Kent: “Fare thee well, king, sith thus thou wilt appear, Freedom lives hence, and banishment is here. W. Shakespeare, King Lear (1605-1606)

Abstract : Liberty in a legal sense may signify a conjunction between positive permission (to do something) and negating permission (to refrain from doing something). However, liberty in this paper is not seen through one of the modes of normativity, namely permission. The basis for an analysis of the right of a child to liberty and administrative detention is a triadic relationship between the person exercising freedom, deprivation of freedom and choice. The components of this triadic relationship have several functions, the first being organizational. The three components organize the internal form of this paper, and also have an impact upon its content. The second function is comparative. The components are used for a comparative analysis of Hart’s thesis on the natural right to be free, the right of each individual to liberty and security under the European Convention on Human Rights, and the right of a child to liberty under the Convention on the Rights of the Child. This paper has two overlapping objectives. The primary objective of the paper is to outline the normative evolution of a child’s rights to liberty within a comparative context. A special objective is to tackle the administrative detention of children in the course of migration. This paper presents a chain of argument justifying prohibition of the administrative detention of children in order to preserve their best interests. Resumé: Každé právo člověka, každé právo dítěte podmiňuje dynamika společen ské praxe a myšlení. Proto právo dítěte na svobodu musí být průběžně posuzováno a kriticky hodnoceno. Hlediska kritického hodnocení jsou různá. V příspěvku byla použita zejména hlediska komparační, aby mohlo být doloženo, jak se rozvíjí obsah a rozsah práva dítěte na svobodu a jaké povinnosti a odpovědnost takové subjektivní právo zdůvodňuje. Zvláštním objektem příspěvku bylo správní zajištění dítěte v mi grační situaci. Autor zdůvodňuje, proč by mělo být od praxe zajišťování dítěte upuš těno. Argumentační řetěz začleňuje argumenty újmy, zranitelnosti i nehumanizující zkušenosti dítěte. Zásada nejlepších zájmů dítěte slučuje zmíněné argumenty. Správní zajištění dítěte v migrační situaci je neslučitelné s touto zásadou, která plní hodno tící, kontrolní i rozhodovací funkce. V příspěvku autor navrhuje, aby státní orgány upustily od výkonu správního zajištění jako prostředku zbavení svobody a používaly opatření mírnější a slučitelná se zájmy dítěte.

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