🍻 Selber Bier Brauen

Standing next to Volodymyr Zelensky days before the Nicolás Maduro extraction, Donald Trump asserted, “we’re protected by a thing called the Atlantic Ocean.” His statement sounded at once naïve and antiquarian in a globalized world of cyberattacks and US worldwide presence. But it is part of the hemispheric charge moving his National Security Strategy 2025 away from the China-centric anxieties voiced by his administration-in-waiting in Project 2025. The energy of that charge was on full display in the press conference following the Maduro extraction, Trump’s asserting that he can do what he wants in his own backyard. Following the precision of the military execution, many have recited Colin Powell’s famous Pottery Barn rule – “You break it, you own it” – but Trump morphed this to: “We own it, so we can break it.” In addition to the hemispheric turn, the NSS provides keys to other elements of the administration’s foreign policy, including relations with China, Russia, and Europe; recovery of dusty spheres-of-influence and balance-of-power talk; and the focus on “Western civilization” that became a through-line in Marco Rubio’s Munich speech.

Trump’s NSS insists that previous National Security Strategies have been “laundry lists of wishes or desired end states.” Moving from that encyclopedic approach, the NSS states: “Not every country, region, issue, or cause – however worthy – can be the focus of American strategy.” There may be times to act in distant parts of the globe, as evidenced by the missile strikes in Nigeria and increasing threats to Iran, but “leaping from that necessity to sustained attention to the periphery is a mistake.” Hence, the NSS is shorter with fewer priorities. Hardly restrains Trump from ordering strikes against Iran, as made clear in the Maduro press conference, the US can strike anytime anywhere. Nevertheless, reducing strategic priorities mirrors Pete Hegseth’s plans to reorganize the military’s command to deemphasize certain areas of the world.

The NSS derides the nation’s recent past to excavate its early history – typically a mythological past – for the administration’s purposes. Regarding critical supply chains, the NSS turns to Hamilton: “As Alexander Hamilton argued in our republic’s earliest days, the United States must never be dependent on any outside power for core components – from raw materials to parts to finished products – necessary to the nation’s defense or economy.” Evidently, tapping Hamilton’s Report on the Subject of Manufactures, a tariff-preoccupied administration may also have been tempted to reference Hamilton’s proposal for a 15% duty on fire arms. If it is odd to bring an eighteenth-century text into the context of Trump’s desire to access critical minerals across the globe, we should read Hamilton, as often suggested, as a mercantilist – reading Hamilton’s interest in Colbert, stage manager of Louis XIV’s economy, into Trump’s economics.

Trump’s hemispheric turn

In its historical vein, the NSS announces the “‘Trump Corollary’ to the Monroe Doctrine [as] a common-sense and potent restoration of American power and priorities.” Someone had done the requisite homework by turning not just to the Monroe Doctrine but also to the “Roosevelt Corollary” announced by Teddy Roosevelt in 1904. In the popular mind, the Monroe Doctrine represents US hemispheric hegemony, not identifying it as initially a compromise and ironically used by Grover Cleveland for a strong but still limited role in Latin America. Roosevelt created his corollary as fully interventionist. He wanted – fitting Hegseth’s cult of masculinity – an “essentially moral and essentially manly” version of the doctrine. It’s also worth remembering that Roosevelt authored The Winning of the West and presided over atrocities in the Philippines. True to the Monroe Doctrine, with or without the corollary, the NSS insists on eliminating the influence of foreign powers in our hemisphere, calling for “a Hemisphere that remains free of hostile foreign incursion or ownership of key assets, and that supports critical supply chains; and we want to ensure our continued access to key strategic locations.”

Serving as a prelude to Trump’s obvious pride over a “Donroe Doctrine,” the NSS articulates the turn to hemispheric thinking, or as articulated by Hegseth’s National Defense Strategy 2026, a promise to “ensure that the Monroe Doctrine is upheld in our time.” In the NSS regional coverage, the Western hemisphere comes first, preceding Asia, Europe, and the Middle East. The US, it explains, is blessed with an “enviable geography” but it can also make free use of the entire hemisphere. That goes far beyond the “re-hemisphering” of Project 2025 by bringing key industries closer to home for supply-chain purposes. Instead, a captive hemisphere is fully available to US economic interests. With the speed boats blown out of the water in the Caribbean as well as the aircraft carrier U.S.S. Gerald Ford and Coast Guard assets positioned in the Caribbean in line with Hegseth’s DSS call for a “more suitable Coast Guard and Navy presence to control sea lanes.” Indeed, Trump’s announcement of an impractical “Golden Fleet” of Trump Class battleships, vulnerable to airborne attacks, reminds us of Teddy Roosevelt’s “Great White Fleet” circumnavigating the world.

Clearly, Trump’s moves in Latin America from economic support to benefit Argentina’s Trumpian Javier Milei to his efforts to influence the election in Honduras show a desire for a Latin America in his image. The NSS is explicit: “We will reward and encourage the region’s governments, political parties, and movements broadly aligned with our principles and strategy.” This follows the history of the US in Latin America. Covert and overt activities in Latin America and the Caribbean are almost endless, including constant efforts to overthrow Latin American leaders, such as Jacobo Arbenz in Guatemala in 1947, Salvador Allende in Chile up to his death in 1973, and fighting the Sandinistas in Nicaragua – as well as instances of US forces training members of death squads in torture technique. Since the nineteenth century, US businesses were also involved in the oppression of local populations, including Ford’s equipping Argentine’s death squads with Ford Falcons.

With Trump’s retraction of the US global footprint and new-found hemispheric focus, including the fever pitch over Greenland, we have returned to a past of spheres of influence, signaling to China and Russia the return to a multipolar world. We have, it seems, stepped into the world of Nazi theorist Carl Schmitt’s Grossraum. There are no worries, as the Biden NSS 2022 expresses, about “powers that layer authoritarian governance with a revisionist foreign policy.” Instead, the Trump NSS revives notions of “balance of power,” and prescribes “work[ing] with allies and partners to maintain global and regional balances of power to prevent the emergence of dominant adversaries.”

China’s downgrade

China’s loss of priority is striking, having appeared as the main threat in Project 2025, well beyond those posed by Russia, Iran, North Korea, and Venezuela. Project 2025 called for charting “a new path forward that recognizes Communist China as the defining threat to U.S. interests in the 21^st century.” Here, the NSS is a little coy. Before the section on the Asian region, China is an unnamed presence. For example, there’s talk about “keeping the Indo-Pacific free and open” and regarding the Western Hemisphere, China is the prime unmentioned culprit in warnings about “Non-Hemispheric competitors who have made inroads into our Hemisphere.” Clearly, the administration is circumspect since the tariff blowup.

China is, instead, viewed principally as an economic competitor. Regarding Taiwan, economics comes to the fore with its dominance of semiconductor manufacturing. In the same sentence, the NSS points to Taiwan’s semiconductor production along with an acknowledgment that Taiwan provides “direct access to the Second Island Chain and splits Northeast and Southeast Asia into two distinct theaters.” The NSS also commits to build out the First Island Chain defenses. References to the two island chains assume foreign policy knowledge about their reflecting decades-old containment strategies.

Europe’s civilizational challenge

In the European section, the war in Ukraine appears minimally, pressing for Europe’s takeover of costs. Alongside misguided European policy elites’ approach to the war, course correction is needed for Europe’s departure from its historical roots. The document opposes any notion of “NATO as a perpetually expanding alliance” but also warns that “certain NATO members will become majority non-European.” A challenge to the basis of NATO, “it is an open question whether they will view their place in the world, or their alliance with the United States, in the same way as those who signed the NATO charter.”

Indeed, the focus on Europe is largely cultural, calling for “restoring Europe’s civilizational self-confidence.” The NSS is overtly racial, talking of the pattern of “civilizational erasure.” In his January 21^st Davos speech, Trump easily rolled into his observation that “certain places in Europe are not even recognizable, frankly, anymore, they’re not recognizable.” In a version of nation-building, the administration, the NSS asserts it will “work with aligned countries that want to restore their former greatness,” desiring “unapologetic celebrations of European nations’ individual character and history.” As in the Western Hemisphere, the administration will pick favorites: “America encourages its political allies in Europe to promote this revival of spirit, and the growing influence of patriotic European parties indeed gives cause for great optimism.” Trump’s administration has demonstrated no embarrassment aligning with far right-wing parties in Europe and using, as the NSS does, replacement-theory talk about “cratering birthrates.”

Values enunciated

Matching a call for Europeans to be unapologetic on culture, the NSS announces: “we will be unapologetic about our country’s past and present.” Advocating the Americanness of the nation, despite talk of economic spirit, most important is culture, wanting “the restoration and reinvigoration of American spiritual and cultural health.” Following the domestic preoccupations of Project 2025, the goal of a golden-age cannot be reached “without growing numbers of strong, traditional families that raise healthy children.”

Democratic values are nowhere. Trump’s first term already abandoned human rights messaging. Similarly, the new NSS avoids “human rights.” Dealing with other countries, the US should “seek good relations and peaceful commercial relations with the nations of the world without imposing on them democratic or other social change that differs widely from their traditions and histories.” For the Middle East, the nation should drop “misguided experiment with hectoring these nations – especially the Gulf monarchies – into abandoning their traditions and historic forms of government.” One shouldn’t disparage Trump’s friends in the Middle East, who can bestow a new Air Force One or fund Jared Kushner’s investment funds. This is of a piece with the decision to pause enforcement of the Foreign Corrupt Practices Act – eliminating prohibitions on US companies from making side payments to foreign governmental officials.

Making the world safe for US business is critical. The Western Hemisphere should become “an increasingly attractive market for American commerce and investment.” Africa is essentially an afterthought where the US has too long “focused on providing, and later on spreading, liberal ideology.” After listing African struggles that Trump could resolve as part of his Nobellust, the NSS asserts that the “United States should transition from an aid-focused relationship with Africa to a trade- and investment-focused relationship, favoring partnerships with capable, reliable states committed to opening their markets to U.S. goods and services.” Prior administrations committed to fostering US economic fortunes in foreign policy. The multi-administration push towards globalization as part of the liberal international order undoubtedly brought vastly increased wealth disparity around the globe. In addition, prior administrations repeatedly sacrificed professed human rights goals – or serially committed or abetted human rights violations – to obtain other goals, whether economic or geopolitical. But the Trump NSS clears the table of human rights and international aid priorities to focus on private wealth.

This is in line with Trump’s talk of rare earth minerals in Greenland and oil in Venezuela. This didn’t aid Marco Rubio’s attempt to shoehorn the Maduro extraction into an exception from US compliance with international law as a law-enforcement arrest. Despite large numbers of aircraft, Rubio had stage-managed the extraction to follow a controversial 1989 memo drafted by Bill Barr opining there was no need to follow UN Charter Article 2(4) or customary international law when arresting individuals abroad. For many in the administration, the exact rationale is unimportant. Similarly, the changing rationales raised as Trump and Hegseth post boats blown out of the water finally matter very little. A read of the NSS with its strong hemispheric move provides some clarity to events despite ever-changing public justifications.

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The merits hearings in Application of the Genocide Convention (The Gambia v Myanmar) concluded on 29 January 2026, and the Court has entered deliberations, with the judgment date to be announced later.

Commentary on this case understandably gravitates to proof, genocidal intent, and whether the ICJ will repeat the caution of its earlier genocide judgments. Those issues matter, but they can obscure a harder question: what does the Court think a genocide judgment is for? The answer is not found in abstract debates about enforceability. It is embedded in remedies. If the Court finds breach yet confines relief to declaratory satisfaction and generic exhortations, it will reproduce an old pathology of international adjudication: monumental findings, thin repair.

The parties’ final submissions make this plain. The Gambia litigated remedies as a central part of what “justice” would require. Myanmar litigated remedies as something the Court should refuse to entertain. This is not a technical side dispute. It is a contest over the institutional ambition of the ICJ in the face of mass atrocity.

The remedial ask is unusually ambitious and Myanmar is contesting it head on

The Gambia’s final submissions are not framed as a request for symbolic closure. They combine findings of responsibility with a package of forward-looking orders. The Gambia asks the Court to order Myanmar to suppress and prevent direct and public incitement to commit genocide, enact specific genocide criminal legislation, and submit suspects to trial before an independent tribunal, including “before an international penal tribunal” (CR 2026/20, pp. 57-58).

The remedy claim then moves from cessation and punishment to a victim-centred reparation programme. The Gambia requests reparation “for the victims” framed around restitution-style measures that map directly onto the Rohingya’s continuing situation: safe and dignified return; restoration or replacement in kind of property and communal sites; family reunification; rehabilitation for physical and mental injury; search for the disappeared and reburial of bodies; protection against discrimination and persecution; the right to identify as Rohingya; freedom of movement; and non-discrimination in access to livelihoods (CR 2026/20, p. 58). It also requests compensation for harm not capable of full reparation by restitution (CR 2026/20, p. 58).

The most politically charged element is framed as a guarantee of non-repetition: “full and equal citizenship” for all Rohingya present in Myanmar or displaced by the relevant events (CR 2026/20, p. 59). The Gambia further pleads remedies for an alleged failure to implement the Court’s 23 January 2020 provisional measures order, including restitution and compensation for injury resulting from violations of paragraph 86(1)-(3) of that order, with a subsequent phase to be triggered if the parties fail to agree on quantum (CR 2026/20, p. 59).

Myanmar’s closing position treats that entire programme as legally baseless. Its final submissions request that all of The Gambia’s claims, including those relating to alleged non-implementation of provisional measures and those relating to remedies, be rejected as lacking any basis in law or fact (CR 2026/23, p. 31, para. 6). Remedies are therefore not an afterthought. They are an explicit site of contestation about what an ICJ genocide judgment can and should do.

Full reparation is the rule, but the Court has a long record of under-delivering

The orthodox baseline in the law of international responsibility is exacting. Reparation should, “as far as possible”, wipe out the consequences of the wrongful act. The ICJ reaffirmed the Chorzów Factory formula in Bosnia and Herzegovina v Serbia and Montenegro (2007) (para. 460). The ILC’s Articles on State Responsibility begin remedial consequences with cessation and guarantees of non-repetition (ARSIWA, Art. 30) and state the core rule of “full reparation” for injury caused (ARSIWA, Art. 31(1)). On paper, this architecture is well suited to genocide litigation: if the wrong is exceptional, the imperative of repair should be correspondingly serious.

The Court’s actual remedial posture in genocide litigation has been more guarded. In Bosnia, having found Serbia in breach of the duty to prevent, the Court refused compensation because there was no “sufficiently direct and certain causal nexus” between the failure to prevent and the injury claimed (para. 462). It then treated a declaratory finding as “appropriate satisfaction” (para. 463). It also declined to order additional guarantees of non-repetition beyond its findings, citing Serbia’s assurances and the judgment itself (para. 466).

This is not merely a technical causation move. It reflects an institutional preference for remedies that minimise judicial supervision and maximise diplomatic exit routes. That preference may protect the Court from the accusation that it is attempting to run post-conflict reconstruction. It also risks turning the ICJ into a tribunal of condemnation without repair.

Gattini’s critique of Bosnia reads today as an uncomfortably precise warning. He argues that the Court’s retreat to declaratory satisfaction gave the judgment a “flavour of half-heartedness” and that, given the exceptional gravity of the wrong, the Court could have shown more creativity and sensitivity with respect to non-material damage and restorative forms of reparation (pp. 711-712). That argument is not about generosity. It is about credibility. If international law insists that genocide triggers responsibility, but the Court’s remedial response is structurally modest, the system starts to look like it is designed to validate norms while refusing the practical consequences of those norms.

Genocide remedies are necessarily “structural”, and that is exactly why they provoke resistance

 The Gambia’s remedies claim is sometimes dismissed as overreach. A better reading is that genocide produces forms of harm that cannot be repaired through declarations alone. Genocide is typically accompanied by displacement, dispossession, family separation, trauma, and the institutionalisation of exclusion. Restitution, in the Chorzów sense, cannot be limited to reversing isolated incidents. It must grapple with durable legal and social structures.

The Gambia’s closing remarks make that logic explicit by linking the legitimacy of the Court’s intervention to pairing truth with “appropriate remedies, including measures for reparations”, framing this as necessary to break a cycle of atrocities and impunity (CR 2026/20, p. 57, para. 5). This is an argument about the Court’s function. A genocide judgment that stops at condemnation risks normalising the idea that the Court’s main contribution is symbolic. In a case where the alleged wrong is continuing in its effects, symbolism is not neutral. It can become a substitute for repair.

There is also a more technical reason why remedies are structurally central here. The Gambia is not the territorially affected State. It is litigating under the Genocide Convention on a community-interest theory and seeks remedies “for the victims” (CR 2026/20, p. 58). This makes remedy design inseparable from questions of representation, beneficiary identification, and distribution. It also gives Myanmar an easy rhetorical line: that the ICJ is being invited to convert an inter-State case into a quasi-human-rights remedial programme. That line is convenient. It is also evasive, because the Genocide Convention’s preventive and punitive logic is hard to reconcile with purely symbolic relief.

The Gambia’s package exposes fault-lines the Court will struggle to manage

One fault-line is remedial competence in relation to punishment. The Genocide Convention obliges States to enact legislation and punish genocide, but The Gambia’s requested order goes further in form, asking Myanmar to submit suspects to trial “including before an international penal tribunal” (CR 2026/20, p. 58). The Court can plausibly order compliance with the obligation to punish. It cannot realistically order the creation or use of an international penal tribunal. A cautious Court may use this over-specification as a reason to retreat to the safest remedy: a declaration plus a generic obligation to comply with the Convention.

A second fault-line is the guarantee of non-repetition through citizenship. Read narrowly, citizenship looks like a domestic political question beyond the Court’s remit. Read more honestly, citizenship is a legal mechanism of exclusion and vulnerability. The requested remedy is intelligible as a guarantee of non-repetition because it targets the conditions that make recurrence plausible (CR 2026/20, p. 59). The difficulty is institutional, not conceptual. The Court has historically been reluctant to order domestic legal reform in detailed terms, particularly where it would require ongoing assessment of compliance. Yet the alternative is to pretend that non-repetition can be delivered through abstract admonitions.

A third fault-line is the attempt to anchor remedial consequences in provisional measures. The 23 January 2020 order required Myanmar to take measures to prevent genocidal acts and ensure that military and related actors do not commit them, to preserve evidence, and to report to the Court (Order of 23 Jan 2020, para. 86(1)-(4)). The Gambia now asks the Court to treat alleged non-compliance with those measures as a separate basis for restitution and compensation (CR 2026/20, p. 59). That request forces the Court to confront a question it usually sidesteps: if provisional measures are binding (LaGrand (2001)) but weakly enforced, do they become legally meaningful only when the Court is willing to attach remedial consequences to their breach?

Remedies matter precisely because enforcement is weak

It is easy to say that remedies are controversial because international law lacks coercive enforcement. The more important point is that weak enforcement makes remedy choices more consequential. Remedies are the bridge between a judicial finding and the mobilisation of other compliance levers, including diplomatic pressure, sanctions, domestic litigation, and criminal accountability processes. A declaration alone sets a standard, but it leaves most of the work to politics. A judgment that specifies concrete conduct obligations and ties them to continuing duties under the Convention provides a clearer legal benchmark for sustained pressure, and narrows the respondent’s room to launder non-compliance as partial implementation.

The provisional measures order already shows how the Court can build a modest compliance channel into its remedies. The reporting obligation in paragraph 86(4) does not compel compliance, but it creates an iterative mechanism that supports scrutiny over time (Order of 23 Jan 2020, para. 86(4)). A merits judgment that carries this logic forward could, at minimum, treat non-repetition as a continuing obligation with identifiable benchmarks, rather than as a rhetorical flourish.

What to watch for in the forthcoming judgment

The central risk in The Gambia v Myanmar is not only that the Court might avoid a finding of genocide, as anticipated by Marko Milanović a long time back. The deeper risk is that, even if it finds a breach, it will default to declaratory satisfaction and generic calls for compliance, repeating the pattern that has made genocide litigation feel simultaneously monumental and materially thin. The parties have litigated remedies in a way that forces the issue. Myanmar’s final submissions explicitly ask the Court to reject the remedial programme as baseless (CR 2026/23, p. 31, para. 6). The Gambia explicitly asks the Court to order reparations and to reserve a subsequent phase for compensation if needed (CR 2026/20, p. 59).

A credible remedial judgment would not need to reproduce The Gambia’s submissions in full detail. It would, however, need to justify any retreat from them. It would need to explain why restitution-type measures aimed at return, property, and rehabilitation are, or are not, legally available when an applicant litigates in the community interest; why guarantees of non-repetition can be treated as generic rather than structural; and why provisional measures should, or should not, carry remedial consequences when allegedly violated. Absent that reasoning, the judgment risks repeating the Bosnia pattern: the Court reaffirms “full reparation” in principle, but operationalises it as a declaration, leaving the most urgent questions of repair to the same political dynamics that allowed the alleged wrong to occur.

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After 25 years of negotiations, the European Union (EU) and four Mercosur countries – Argentina, Brazil, Paraguay, and Uruguay – reached a political agreement on 6 December 2024 on a Partnership Agreement (EU-Mercosur Agreement). The geopolitical and geoeconomic importance of this Agreement cannot be understated (see further Larik). At a time where trade is increasingly weaponised for economic blackmail, the EU-Mercosur Agreement establishes one of the largest free trade zones, as well as institutional and political cooperation, through law. Against this background, it came as a surprise when a narrow majority in the European Parliament (EP), backed by far-right and far-left parties alike, voted on 21 January 2026 to request an opinion on the compatibility of the EU-Mercosur Partnership Agreement (EMPA) and the accompanying Interim Trade Agreement (ITA) with EU law. By contesting the legality of the EU-Mercosur Agreement, the EP may have shot itself in the foot for three main reasons: First, by contesting the legality of the ITA, the EP risks losing a formal say over the temporal application of the “trade part” of broader mixed agreements pending ratification in the Member States. Second, it remains unlikely that the Court will derail the EU-Mercosur Agreement as it has already addressed the main points raised in the EP Resolution in prior case law, finding no incompatibility with EU law. Third, the request for an opinion may not even delay the provisional application of the EU-Mercosur Agreement. The legal insights and practical impact of the anticipated opinion might therefore not outweigh the inter-institutional and global political upheaval caused by the EP Resolution.

ITAs as tools to enhance the EP’s powers

From a political perspective, it may be self-sabotaging for the EP to contest the legality of the ITA. In essence, the ITA is a stand-alone version of the “trade part” (Part III, Chapters 9 et seq.) of the EMPA. Because the scope of the ITA is confined to the EU’s exclusive trade powers (Article 3(1)(e) TFEU), it must be concluded by the EU alone. The EMPA, by contrast, comprises also shared competences, enabling the Member States to become contracting parties in their own right alongside the EU (“mixed agreement”). The ratification of the EMPA by all national parliaments can easily take 10+ years, which explains the need for an interim agreement to apply in the meantime. The ITA will be repealed and replaced by the EMPA once the latter enters into force (Article 23.10 ITA).

As the ITA is designed to bridge the time between signature and entry into force of the EMPA, it fulfils the same function as provisional application (Article 25 VCLT, Art. 218(5) TFEU). Using an interim agreement instead of provisional application however increases the EP’s formal powers over the temporal application of the trade part of a broader mixed agreement. Because the ITA is a stand-alone agreement, the EP must consent to its conclusion in accordance with Article 218(6)(a)(v) TFEU. Had the EMPA simply been provisionally applied in full, the EP would not have had a formal legal say over the temporal application of the trade part of EMPA pending its entry into force. Pursuant to Article 218(5) TFEU, the provisional application of EU agreements can be decided by the Council alone. If the Court were to find that the Commission has no power to create self-standing interim agreements (which is unlikely, see below), the Commission could (also for future agreements) go back to proposing the provisional application of mixed trade agreements in full, which would formally leave the EP without veto powers over the temporal application of the trade part of such agreements. Moreover, in such a scenario, it would also be uncertain whether the EP could still rely on the political goodwill (p. 17) of the Commission to await the EP’s consent before proposing the provisional application of EU trade agreements to the Council.

The legality of the ITA

Aside from potentially being political self-sabotaging, the legal chances of success of the EP’s request remain low (or, in Chamon’s words, “almost non-existent”), as the Court has already addressed the two main issues raised in the EP’s Resolution in prior case law and found no incompatibilities with EU law.

The first main issue raised in the EP Resolution is the legality of the ITA. In its 1999 negotiating directives, the Council had authorised the Commission to negotiate a single mixed agreement. According to the EP, the Commission exceeded the scope of these directives by proposing the signature and provisional application of a separate “EU-only” ITA to the Council, thereby breaching Article 218(4) TFEU, as well as the principles of conferral, institutional balance and sincere cooperation. Yet, the EP’s argument appears superfluous in light of prior case law. In Australia ETS, the Court held that “it is contrary to Article 218(4) TFEU for the [negotiating] positions established by the special committee or, as the case may be, the Council itself to be binding” (para 88). As the Council has veto powers over the signature and provisional application of the agreement under Article 218(5) TFEU, the Commission’s “unilateral negotiating” powers under Article 218(4) TFEU are limited by law and in practice. One could even argue – as the Council did in Opinion 3/94 – that the Council’s decision “to sign an agreement negotiated by the Commission implies approval of its contents and makes good any irregularity during the course of the negotiations”. Notably, the Council has already decided to sign the EMPA and the ITA. A qualified majority of Member States in the Council therefore support the ITA while the ratification of the EMPA is pending.

The fact that the ITA turns out to be “EU-only” agreement does also not indicate a breach of Article 218(4) TFEU, or the principles of conferral, institutional balance, and sincere cooperation. The character of an agreement – be that EU-only or mixed – depends on the division of competences between the EU and the Member States and can thus only be determined on the basis of the content of the agreement, i.e. after the negotiations are finalised. The content of the ITA indicates that the agreement squarely falls within EU exclusive competence and therefore must, as a matter of law, be concluded by the EU alone (c.f. Opinion 2/15). The Council’s decision to sign the ITA signals its approval of the ITA’s content and character. Whether or not the Council had, when it originally proposed the negotiations back in 1999, a single mixed agreement in mind is irrelevant. Political realities may change, and the procedure foreseen in Article 218(4-6) TFEU offers sufficient flexibility to the EU legislature to adjust accordingly.

Compliance with the precautionary principle and the rebalancing mechanism

The second main issue raised by the EP is the ITA’s compliance with the precautionary principle. Notably, the precautionary principle is firmly anchored in Article 18.10(2) ITA. Yet, measures adopted under the precautionary principle by one party could be brought before an arbitration panel by another party under the so-called rebalancing mechanism (Article 21.4(b) ITA). Accordingly, a party can challenge a measure applied by another party that “nullifies or substantially impairs any benefit accruing to it” irrespective of whether that measure conflicts the ITA. Simply put, the rebalancing mechanism aims to find solutions in case measures not breaching the agreement have severe impacts on trade, which may include financial compensation. The EP argues that such compensation may pressure the EU not to adopt measures under the precautionary principle, thereby threatening “the EU’s ability to maintain the autonomy of the EU legal order”. Yet, this argument will likely not hold before the Court for two main reasons. First, the rebalancing mechanism leaves the EU with discretion to maintain the legal status quo. The arbitration panel cannot mandate the parties to change their domestic laws (Article 21.14(10)(c) ITA). What is more, the panel will only suggest compensation if both parties agree, and such suggestions are not legally binding (Article 21.14(10)(d) ITA). The rebalancing mechanism is primarily a tool to create consultations between the parties leading to a mutually agreed solutions (Article 21.17(2) ITA). As a result, it is unlikely to preclude a party from adopting measures under the precautionary principle.

Second, even if the EU were to face compensations for a measure adopted under the precautionary principle (e.g. under Article 21(4)(a) ITA), this would likely not affect the autonomy of EU law. The Court has already assessed a similar question in Opinion 1/17 on the compatibility of CETA with the autonomy of EU law. Here, the Court was essentially asked whether compensations levied by the CETA arbitration tribunal could risk the level of public interest protection set by the EU legislature. The Court held that the “CETA tribunal has no jurisdiction to declare incompatible with the CETA the level of protection of a public interest established by EU measures […] and on that basis, to order the Union to pay damages” (para 153). Henceforth, the Court found CETA to be compatible with the autonomy of EU law (paras 160-161). While the Court may fire a similar “warning shot” in the direction of the ITA panel, it would likely reach the same conclusion regarding the compatibility of the agreement with the autonomy of EU law.

The opinion request may not delay the provisional application of the EU-Mercosur Agreement

Finally, the EP’s request for an opinion is unlikely to cause delays in the provisional application of the EMPA and ITA. The EP cannot vote on the conclusion of the EU-Mercosur Agreement while the opinion is pending. Yet, the EU-Mercosur Agreement may be provisionally applied (Article 23.3(2) ITA, Article 30.2 EMPA). The Council has authorised the signature and provisional application of the EMPA and ITA on 9 January 2025 – two weeks prior to the EP’s decision to refer the EU-Mercosur Agreement to the Court. Notably, the Council mandated that the EMPA and ITA “shall be applied on a provisional basis”. The wording of the Council Decisions does not leave the Commission with discretion to await the outcome of the opinion procedure and/or the EP’s decision under Article 218(6) TFEU. It would arguably require an amendment of the Council Decisions to enable the Commission to halt the provisional application. Even the EP appears to have accepted that the “Commission may opt for the provisional application of the agreement once at least one Mercosur country has completed its ratification.” Yet, the EP retains the power to consent or reject the conclusion of the ITA and the EMPA under Article 218(6) TFEU. A definite rejection of either agreement by the EP would lead to the termination of its provisional application (Article 25(2) VCLT).

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