Presentation of a Paper on Brexit and EU Citizenship at a Conference in Austria

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In the past few years the concept of citizenship has for a variety of reasons regained fashion amongst national, European and international lawyers. In the UK the renewed interest in the notion of citizenship is partially explained by the effect of Brexit on the status of EU citizens in the UK (and UK nationals in the EU). Last year a wide range of events, which Christian Dadomo and Dr Noëlle Quénivet attended, were organised in Bristol to discuss citizenship (see here and here) and so when they saw a call for papers for a conference on citizenship at the University of Graz (Austria) they jumped onto the opportunity to present their work abroad and thankfully their paper entitled ‘Assessing EU Citizenship under the Myopic Lens of Brexit’ was accepted.

The conference ‘Transformation of Citizenship’, held on 20 and 21 November 2018, was organised by the Institute for International Law and International Relations in conjunction with the European Training and Research Centre for Human Rights and Democracy of the University of Graz (Uni-ETC) within the context of the project ‘Transnational Governance of Irregular Migration and the Transformation of Citizenship’.  It brought together a vast array of scholars from all around the world to discuss issues such as the sale of passports, global citizenship, statelessness, foreign terrorist fighters, solidarity, etc. Two panels were dedicated to Union Citizenship, thus highlighting the importance and relevance of the topic.

Christian and Noelle started their paper by reminding the participants that the CJEU had defined EU citizenship as a fundamental status that enables nationals of Member States to enjoy the same treatment in law and that since then scholars had been debating the legal value of such status. Christian and Noelle argued that Brexit brings to the surface again discussions about the legal value or more generally the worth of EU citizenship in contrast to (State) nationality. In their opinion, there are two ways of looking at EU citizenship. There is first a minimalist approach that focuses on the legal status and the rights with which individuals are endowed. It is the more palpable, almost every day life appearance of EU citizenship for EU citizens having exercised their right to free movement. Yet, attachment and loyalty to the EU cannot be fostered by a limited focus on citizens’ status and rights alone and so there is also a broader and more dynamic approach to EU citizenship that looks at the symbolism of EU citizenship and more specifically at the solidarity between EU citizens that should create some form of identity. It is more aspirational and inscribes itself in a vision of the EU as a polity in which a European civitas exists and thrives.

At first sight, Brexit undergirds this minimalist approach to EU citizenship in as much as many discussions centred upon the rights of the EU citizens in the UK (though less on the UK nationals in the EU27). The focus of attention was initially about the fate of these EU citizens in the UK and the rights they would lose as a result of Brexit. Both EU nationals in the UK and UK nationals in the EU realised the value of their EU citizenship. After all, you only appreciate what you had once you have lost it! For example, UK nationals both in the EU and more interestingly in the UK (even those who have never exercised their right to free movement) have applied for the nationality of an EU Member State to keep their EU citizenship.

However, the wider, aspirational approach towards EU citizenship is no less visible in Brexit for there have been demonstrations in favour of the EU in a State whose nationals have always been sceptical towards the EU, support in the European Parliament for ‘associate’ EU citizenship and a European Citizenship Initiative launched in July 2018 with the objective of keeping EU citizenship for UK nationals in the EU27. Therefore, it is possible to state that Brexit has revealed that EU citizenship goes beyond this minimalist approach that focuses solely on rights to a vision of EU citizenship as something that has a wider appeal and is based on solidarity along the French motto of ‘liberté, égalité et fraternité’.

More fundamentally, the European Union has enabled a shift in the way non-nationals are viewed: from foreigners to workers (homo economicus), to residents and to EU citizens. With Brexit the pendulum might go all the way back to viewing UK nationals in the EU who were EU citizens as foreigners and EU citizens in the UK as foreigners. Yet, the rhetoric of both the UK and the EU shows that they are adamant to reverting to square one. Consequently, it might be possible to state that Brexit has demonstrated that EU citizenship has subtly though fundamentally challenged the way EU citizens who have exercised their right to free movement are viewed. Though Brexit undeniably highlights the duality of EU citizenship, a status in its own right as well as a complementary over-layer that acts as a gate to rights that will be lost post-Brexit, it has revealed the intrinsic value of EU citizenship for EU citizens living in another EU Member State. As a result, Christian and Noelle argued that Brexit shows that EU citizenship is more than just a bundle of rights. EU citizenship has a transformative power in the sense that it is not just a ‘top up’ but has become part of a Union citizen’s legal heritage, especially in relation to long-term residents. And so, reverting to the status quo ante is nearly impossible.

What is more Brexit offers an opportunity to reinforce and complete EU citizenship and putting EU citizenship at the forefront of the European project. Like the French revolutionaries who created French citizenship on the tryptic ‘liberty, equality and fraternity’, the EU citizenship can equally be further developed on the tryptic ‘freedom of movement, equality treatment and solidarity’. Freedom of movement is fully developed, equal treatment can be completed by extending the so-called special (political) rights and notably the right to stand and vote in all national elections including referenda in their country of residence, and finally solidarity needs better promotion as it is only in its infancy.

Presentation of a paper on ‘Nationality as a Tool of Hybrid Warfare’ at a Workshop on Russia and International Law

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It is argued that Russia’s contemporary foreign policy and actions following its loss of territory after the breakup of the Soviet Union have led it to attempt to regain its influence using a variety of methods. In particular, it is contended that increasingly Russia is using ‘hybrid warfare’ tools to this end while at the same time exploring the limits of international law through lawfare which is defined as the use and exploration of the limits of the law to the letter but not necessarily the spirit to achieve desired outcomes. It is against this conceptual framework familiar to war studies specialists that Dr Noëlle Quénivet presented a paper, jointly written with Dr Sabine Hassler, entitled ‘Nationality as a Tool of Hybrid Warfare – Limits under International Law’ at the Workshop on ‘Russia and International Law – Politics and Discourse’ organised by the British International Studies Association on 17 September 2018. The workshop, held at the War Studies Department at King’s College London, brought together a group of young and well-seasoned scholars in international law and international relations to discuss Russia’s current stance in international law.

After a keynote address by Prof Bill Bowring of the University of Birbeck the first panel focused on Russia, Law and ‘Hybrid Warfare’ in which Dr Hassler and Dr Quénivet’s paper was delivered. It is contended that to achieve its foreign policy objectives, Russia has developed an arsenal of tools such as information operations, cyberattacks, proxies, etc. while maintaining that it complies with international law, at least with the established legal framework. One set of arguments claims that Russia is not trying to create new law but rather explores the scope and interpretational variations of the existing framework to achieve its objectives. Another set of arguments focuses on lawfare in the sense that Russia has employed law and legal processes to further its aims by exploiting legal thresholds and grey areas, thereby instrumentalising international law: it is using, abusing and misusing the law.

Using the example of the concept of nationality under international law Dr Hassler and Dr Quénivet show how Russia has instrumentalised the identification of nationals and the subsequent conferral of nationality to create facts and context that seemingly justify Russia offering its discretionary right to offer diplomatic protection to its nationals abroad and ‘intervening’ in Georgia and Ukraine. The paper maintains that the conferral of nationality (coined ‘passportisation’) is part of an integrated lawfare strategy that has so far evolved in five phases. This long-haul policy consists in creating facts as a basis for legal claims and then applying the law onto the facts with a view to modifying the law and thus establishing new, albeit sometimes unrelated to nationality, international law norms. Whilst it might be viewed as an exercise in international law interpretation, the fact that there seems to be a discernible pattern and that the situations created as a result of this policy are often unlawful means that first the law appears to be deliberately misused or abused and thus indeed is an instrument of warfare, and second one needs to carefully examine the practice and the opinio juris of Russia to predict possible changes in customary international law.

Operationalizing Green Governance: New Policy Strategies for Ecosystems and Resources: Exploring the Commons

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By Elena Blanco (Environmental Law Research Unit, CALR), Associate Professor of International Economic Law

 

Project: “Operationalizing Green Governance: New Policy Strategies for Ecosystems and Resources: Exploring the Commons” at the Watershed Bristol, 5-6 September 2018.

Neoliberalism has produced multiple, entangled, and intersecting crises that cannot be resolved from within conventional political and legal systems. A liveable, sustainable future requires a fundamental shift towards new ways of thinking and being where the limits of ecosystems and the Earth life systems are respected. As part of this new thinking Bristol was the setting of a second ‘Commons: Law and Politics’ extended two day encounter organized by Elena Blanco (UWE Bristol), David Bollier (Commons author and activist) and Professor Anna Grear (Cardiff).

The workshop addressed the following challenge: how can we transform Western Capitalist crises by using creative ‘legal hacks’ and new types of governance. Watershed provided the inspiring background for an intense two-day practical conversation where seventeen carefully selected contributors from Europe, America and Australia, coming from a range of disciplinary and practice-based backgrounds brought together stories, insights and perspectives. Theorists learnt from practitioners while practitioners were exposed to some imaginative, world-shifting thinking in contemporary scholarship. The relationship between modern capitalist law and the commons was subject to questioning while exploring creative legal hacks capable of inaugurating new patterns of resistance and constructive institution-building for commons-based alternatives.

Areas explicitly discussed included: the relationship and tensions between commons and indigenous cosmovisions; property forms and relations—including relationships concerning land, intellectual effort and the process of ‘invention’; contract as relationality and new rules of exchange, sharing and dissemination; the search for commons-normative market relations and alternative currencies of eco-social engagement; re-imagining law and generating legal hacks to reflect and facilitate each of the foregoing—including the redesign of the corporate form.

The two day workshop was followed by an open lecture by David Bollier – ‘Free, Fait and Alive: The Insurgent Power of the Commons’ on the evening of the 6 September as part of the Bristol Festival of ideas.

This workshop builds on an ongoing research agenda on the operations and legal forms of green governance within the Environmental Law Research Unit, especially a previous “The Future of the Commons” workshop (The Future of the Commons, Blanco, Feb 2018); and Elena Blanco and Razzaque “Natural Resources and the Green Economy”.  A third ‘Local Commons/Green Governance/Circular economy’ event focused on initiatives in Bristol will take place in 2019.

 

Treaty on the Prohibition of Nuclear Weapons workshop with Professor Dan Joyner at UWE Bristol.

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By Dr Noelle Quenivet.

On 10 September 2018 the International Law and Human Rights Unit had the pleasure to welcome Professor Dan Joyner of Culverhouse School of Law of the University of Alabama (USA) for a workshop on the newly adopted Treaty on the Prohibition of Nuclear Weapons. Prof Joyner is a renowned specialist in nuclear non-proliferation law who has extensively written on the subject and is currently penning a book on the new treaty. He also curates the widely known blog Arms Control Law.

The workshop started with a lunch to give participants the opportunity to meet with Prof Joyner in a less formal manner as well as to get to know each other as they came not only from UWE but also from the University of Reading and the University of Bristol. Participants included scholars well-versed into nuclear weapons and disarmament law as well as students on our LLB in European and International Law programme.

The aim of the workshop was to examine the new treaty from a variety of perspectives, such as human rights, armed conflict, use of force, security, environment, non-proliferation, organised crime, etc and it no doubt succeeded in doing this.

After a round of introduction, Prof Joyner started with a couple of key facts. The treaty was negotiated amongst 123 States and almost unanimously adopted (The Netherlands voted against whilst Singapore abstained). It will enter into force upon the receipt of the 50th instrument of ratification. Although at the time only 15 States have ratified the treaty and 60 have signed it, Prof Joyner forecasted that it would soon enter into force. Prof Joyner then brought us back in time, to the 1960s when all discussions relating to nuclear weapons were focused on non-proliferation rather than a blanket prohibition. In 1968 the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was adopted at the height of the Cold War with the twin aims of stopping the proliferation of nuclear weapons (with a view to full disarmament) and promoting cooperation in the peaceful use of nuclear energy. A distinction was made between nuclear and non-nuclear States. A quid pro quo was found: the nuclear powers (the five permanent members of the United Nations Security Council, also commonly known as the P5) could keep their nuclear weapons but would ensure their non-proliferation (Articles I and II), work towards disarmament (Article VI) and submit themselves to the monitoring of the International Atomic Energy Agency (Article III) whilst the non-nuclear States would receive support in acquiring nuclear energy for peaceful purposes (Article IV). To support the disarmament process some States agreed to set up nuclear weapons free zones. Later, in 1996 the Comprehensive Nuclear-Test-Ban Treaty (CTBT) was adopted but it failed to gather enough ratification instruments to enter into force. That being said Prof Joyner explained that he believed all these treaties had helped eliminate, or at least, reduced the threat of the use of nuclear weapons. This general movement towards disarmament was further buttressed by a series of bilateral agreements between then Soviet Union and the United States of America.

The three pillars of the NPT are non-proliferation, the peaceful use of nuclear energy and disarmament. Prof Joyner observed that over the years the rhetoric had changed in the various review conferences that brought all State parties together. More and more lip service was paid to non-proliferation whilst a coalition of States whose focused had always been on the peaceful use of nuclear energy and on disarmament grew increasingly frustrated. Such States complained that the nuclear States were not working towards disarmament and that little had been achieved over the years. In reply the nuclear States would point out that the number of nuclear weapons had clearly diminished. Yet, to the non-nuclear States the aim was complete disarmament and not a reduction in number. Also they pointed out that nuclear weapons were still part of the military strategy and that such weapons were continuously being not only maintained but also modernised and upgraded.

Around 2014-2015 talks started about a humanitarian initiative led by NGOs working in the field of gender, the protection of the environment, international humanitarian law and human rights law. This eclectic group of NGOs managed to gain the support of some States to organise a conference whose aim was to show that nuclear weapons were amoral. Yet, to do so they used the law. Such initiative was not new and Prof Joyner admitted that he had not imagined at the time that it would be successful. So, surprisingly, this coalition of NGOs managed to persuade the United Nations General Assembly to approve a negotiating conference for a treaty prohibiting nuclear weapons. In other words, the treaty would be drafted under the auspices of the United Nations. The idea was that of establishing a comprehensive ban on nuclear weapons and to treat such weapons in the same way as other banned weapons such as chemical and biological weapons or landmines. The thrust was that some moral taboo should be attached to the use of such weapons.

The success of the negotiations can be partly explained by the fact that the negotiators tapped into the view that the nuclear States had got away with too much in the past. There was indubitable resentment that the NPT had not achieved what it was meant for, i.e. full disarmament. The nuclear States boycotted the treaty negotiations on the basis that it was just idealistic talking and that nuclear weapons were imperative for military strategy purposes. In particular they reminded the negotiating States that they were in fact benefitting from the nuclear umbrella themselves. The treaty in their opinion would be useless because the prohibition would only apply to States that did not have nuclear weapons and, in a grander scheme, might in fact lead to a delegitimation of the NPT. The reply of those in favour of the treaty was that they had waited too long under the NPT for disarmament to happen. Also, using the example of the Ottawa treaty (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction) banning landmines, they expressed the view that it might be possible to create a customary international rule via a treaty (though Prof Joyner explained that it might be difficult owing to the specially affected States doctrine under international law) or that at least the treaty would become part of nuclear diplomatic talks and thus become a commonly used instrument raised in deliberations relating to nuclear weapons.

Prof Joyner finally shared his thoughts on the ratification process and potential State parties. He drew the audience’s attention to the fact that the treaty had been so phrased that States which did not have nuclear weapons but allowed other States to use their territory to station or deploy such weapons would not be able to become State parties unless such weapons were being removed from their territory. The application of this specific provision (Article 1(1)(g)) means that NATO States on whose territory US nuclear weapons are stationed, installed or deployed would not be able to become parties to the treaty. This explained The Netherlands’ vote against the treaty. Other non-nuclear States in Western Europe concerned by this provision are Italy, Belgium and Turkey. As a result such States are faced with a tough choice because Article 1(1)(g) clashes with their NATO commitments. A further issue is that of States such as South Korea or Japan who benefit from the US nuclear umbrella and find it difficult to side with the US.

The presentation was followed by an engaging discussion and critical analysis of the treaty. One of the first questions related to organised crime and in particular the black market in nuclear weapons. Prof Joyner explained that in the 90s after the fall of the Soviet Union efforts were made to secure its nuclear stock. Yet, nuclear materials still turn up but what is in fact more dangerous in his view is the dual use of such materials. Also he observed that there was a shift in the illegal nuclear market from fizzle materials to intellectual property (designs and data) which has its own challenges as there are non-tangible goods. He also pointed out that an elaborate set of shell companies may be set up to launder such illegal activities.

A second issue examined was that of the link between the jurisdiction of the International Criminal Court for the crime of aggression and the treaty and notably problems relating to whether States that were not a party to the treaty could see their nationals being prosecuted for using nuclear weapons. This led the group to examine the concept of jurisdiction as understood in a range of nuclear weapons treaty.

A third point related to the interrelationship between the NPT and the new treaty. Prof Joyner highlighted that the new treaty was meant to be in harmony but yet separate from the NPT. This was particular visible in the choice of words and concepts used in the treaty. As he explained, to some extent it is possible to treat the new treaty as an implementation of Article VI of the NPT.

The conversation then moved back to analysing the individual policies of States that have links to the US. For example, Japan, the only State that had suffered from the use of nuclear weapons, was struggling to explain why it was not able to become a party to the treaty. Similar debates were being held in Germany. During the discussion it was mentioned that the US had sent rather stern letters to its NATO partners informing that they should not sign or ratify the treaty. The new treaty had definitely changed nuclear diplomacy. Until then, the combination of the NPT and the work of the IAEA was the best of both worlds: it could keep its nuclear weapons whilst being ensure that no further States would gain access to the pertinent technology.

A reference to a declaration made by India that it did not believe that the treaty would eventually become customary law launched an interesting debate on whether India had proffered its first utterance with a view to becoming a persistent objector under international law. A wider discussion on the formation of customary international law and the doctrine of specially affected States that was first mentioned in the Nicaragua Case ensued.

Parallels with other treaties such as the Ottawa Convention on landmines and the Convention on Cluster Munitions were also drawn as some provisions of the new treaty seemed to have been heavily influenced by (or even copied/pasted from) the wording used in previous conventional weapons conventions. Also the fact that this treaty was the fruit of a concerted effort by NGOs was noted as another example of bottom up initiatives in the field of disarmament and weapons prohibition, much alike the current Ban the Killer Robots campaign. Prof Joyner observed that without the support of this eclectic group of NGOs the treaty would have never existed. Yet, it was also their engagement with the process that had led to a long preamble that at times read like a list of loosely connected items.

Plenty of other issues were debated at the workshop and there is no space here to go into details. There was certainly plenty of food for thoughts for Prof Joyner’s forthcoming book on the new treaty!