National Security and Essential Security Interests in CJEU Jurisprudence

FDI has undergone a process of liberalisation over the last three decades. However, and despite the existing position in favour of this attitude, states have always maintained barriers of different natures and scopes to control it. The reasons for these barriers may have varied over time, and likewise the level of restriction on investment flows from abroad, but they have always existed. Nevertheless, as a general trend, barriers to foreign investment have been lowered steadily in recent years and there is now an attitude in favour of the liberalisation of FDI. However, and despite this positive approach to FDI, some major changes have been taking place worldwide in recent times. The economic crisis, the atmosphere of increasing securitisation, and the geostrategic changes that have come about since 2007 have led many countries to ‘reassess their investment policies’, in many cases on the basis of national security or national essential security interests grounds. Reasons for limits on FDI, which have always existed and are present in many IIAs, have gained further strength in the past decade, to the extent that national security and related grounds are nowadays considered one of the primary justifications for barriers to FDI. Indeed, it is in the field of FDI, more than in international trade, that national security interest exceptions may be truly tested. As national security concerns of all kinds multiply, more and more countries, even developed countries, are tempted to create – or have actually created – obstacles to foreign investment based on these kinds of grounds. Host states fear that foreign investors will gain control of essential security-related technology, compromise access to it or act in a way that advances the goals of foreign states. These fears are not new. Moreover, they are not related solely to FDI, either private or sovereign-driven, but also to other areas of the economy, and they have been to some extent anticipated by existing IIAs. As previously mentioned, the notion of ‘national security’ has evolved and now includes national interests or similar, concepts very closely linked to strategic sectors and national champions. IIAs already address the economic, political or security concerns that FDI, both private and public, poses.

This chapter investigates the regulation of SWFs' investments in the EU and its Member States. The chapter starts with an overview of the latest multilateral initiatives concerning SWFs and national security-related concerns, namely the Santiago Principles and the OECD Guidelines for Recipient Countries Investment Policies relating to National Security of 2009. The aforementioned multilateral initiatives, also supported by the EU Commission, aim at avoiding national (over)reactions, and a downward spiral into protectionist. Furthermore the chapter emphasizes that the admission and establishment of foreign investments (direct investments of third countries' SWFs included) in the EU is primarily (but not exclusively) governed by the freedom of circulation of capital. This internal market freedom encompasses the fundamental principle of non-discrimination, which is also mentioned in the OECD Guidelines as a sound basis for national investment policies. Nevertheless, the aforementioned freedom is not absolute. Under the Treaty's rules it is subject to reservations and (possibly) Member States' derogations, when genuine public order and security reasons exist. In this respect, the chapter highlights that free circulation of capital and the case-law of the CJEU thereon gives Member States quite limited possibilities to lawfully resort to investment restrictions. That notwithstanding, some Member States (such as Germany and France) have tightened their foreign investment control procedures for public order and security reasons in recent times. The chapter argues that such national schemes are not in line with the principles developed by the CJEU in its case-law on the matter. Moreover, after the entry into force of the Lisbon Treaty the EU has acquired exclusive competence to legislate on the admission of FDI. The conclusion is drawn that a European harmonization is needed in order to address Member States' genuine public security concerns related to direct investments of third-countries' SWFs.

In the introductory part of the paper, the author defines the terms of policy and strategy for national security. Furthermore, the author determines the national security policy of Montenegro in accordance with the National Security Strategy of Montenegro from 2006, 2008, and 2018, as well as the components of the national security policy, such as national security interests and goals with special reference to strategic interests, overview of the global and regional environment, and security risks and threats. At the end of the paper, the author outlines the external components of national security policy – cooperation with European countries in responding to modern challenges, risks and threats, Montenegro's possible response to security risks and threats, and developing a crisis management system and participation in missions. The content will be based on an analysis of foreign literature and the use of electronic content. The subject of research in this paper is the national security policy of Montenegro in modern global conditions. The purpose of this study is to focus on the importance of national security and global security in the scientific literature. Keywords: national security policy, national security strategy, security interests and goals.

The article examines the problematic issues of implementing the National Security Strategy with regard to current threats in the information sphere, ensuring the achievement of the priorities for protecting the right to information and personal data protection, and decisions of the national security entities on additional restrictive measures (sanctions) for individuals and legal entities in case of violation of legislation in the information sphere. The analysis confirmed the concept of the possibility of limiting the right to information by law in the interests of national security, territorial integrity or public order, to prevent riots or criminal offenses, to protect public health, to protect the reputation or rights of others, to prevent the disclosure of information received in confidence, or to maintain the authority and impartiality of justice. The author notes that insufficient attention is paid to the development of public law mechanisms for restricting the right to information in the interests of national security. The author separately analyzes the mechanisms of "restriction of human and civil rights and freedoms", "restriction of the right to information in the interests of national security", and identifies "constitutional and legal", "administrative and legal", "economic and legal", "civil and legal", "international and legal" mechanisms of restriction of the right to information, and other public and legal mechanisms of restriction of the right to information. The author emphasizes the need to study them separately in the systems of: specific and individual restriction of the right to information; general restriction of the right to information and introduction of a ban on a certain type of information activity, content of a certain content; control of restriction of the right to information.

PURPOSE: To highlight the degree of perception among the young population in Romania (ages 18–35) regarding the impact of the decisions by some European Union (EU) countries to delay the full acceptance (air, maritime, and land) of Romania’s accession to the Schengen Area on various indicators characterizing the country’s sustainable development, national security interests, and the quality of life of the population. This study was deemed timely in light of the EU’s decision regarding the removal of air and maritime border controls with Romania starting on 31 March 2024 (“Romania’s accession to the Schengen Area, air and maritime”), while maintaining controls at land borders (non-acceptance of “land accession”), under the conditions of Romania fully meeting all the requirements imposed by European legislation, a situation considered by national authorities and the Romanian public as discrimination compared to European states, and causing significant disadvantages in terms of sustainable development and the country’s security interests. METHODS: The study was based on a questionnaire administered to 785 Romanian citizens aged 18–35 years. Data were collected during the period from 15 March 2024 to 15 April 2024, centered around the date of 31 March 2024, which marks “Romania’s accession to the Schengen Area, air and maritime”, through the elimination of EU air and maritime border controls with Romania. The main method used was statistical analysis (descriptive, bivariate, and multivariate), focused on detecting and assessing the degree of respondents’ awareness regarding the efforts of authorities for the full accession of Romania to the Schengen Area and the EU’s response to this effort; the negative impact of delaying the elimination of controls at the EU’s land borders with Romania (“land accession”) on national security interests, on the sustainable development of the country by relating to the objectives of the 2030 Sustainable Development Agenda developed at the United Nations Summit in September 2015, and on the quality of life of people in Romania. Additionally, the study was based on empirical research of the analyzed issues, in accordance with the available literature. RESULTS: The study reveals that, in the context of a very high level of awareness among respondents regarding the efforts of national authorities for Romania’s accession to the Schengen Area (75.26–91.30%) and access to credible information resources and materials about these efforts (65.10–73.05%), Romania’s status as a full-fledged EU member is a determining factor for motivating Romania’s full accession to the Schengen Area (83.33–93.48%). Furthermore, the decisions of some European states to delay full accession are perceived as subjective/unfair actions that are likely to limit/violate the access/facilities of Romanian citizens, as full-fledged EU citizens, to the values of the European democratic space (59.12–76.69%). Additionally, respondents believe that these decisions are likely to affect Romania’s security interests (43.61–56.52%), exacerbate the discrepancies between the living standards of Romania’s population and those of Western European countries (47.59–71.73%), and negatively impact the national implementation of the 2030 Sustainable Development Agenda objectives, as these objectives mostly target significant national infrastructures. Moreover, the WHOQOL-BREF measurement tool shows that these decisions negatively affect, to a large and very large extent, the quality of life of people in Romania (32.07–41.31%), with specific characteristics of the investigated domains (“Physical”, “Psychological”, “Environmental”, and “Social”), depending on the considered socio-demographic variables. CONCLUSIONS: We consider that the study conducted provides a scientifically documented information base regarding respondents’ awareness of Romania’s efforts to join the Schengen Area, their perception of the direct consequences on national security, sustainable development of Romania, and quality of life, as a result of the decisions by some EU countries to delay Romania’s full accession to the Schengen Area. Lastly, the study reveals the correlation between the dissatisfaction/frustration of the population caused by the decision to delay Romania’s full accession to the Schengen Area and the questioning of the social, economic, political, and security consequences induced by this decision.

The goal of this article consists in the analysis of phenomenological characteristics and legal correlation of the definitions “national interests” and “national security”. The author highlights doctrinal and conceptual peculiarities of consolidation of national interests in the modern Russian legal system, determines the priorities of establishment of the system of national interests, as well as proposes optimal means for formation of the system of national interests through the integrated model that ensures adequate inclusion of the objectively nationwide interests, creation of mechanisms of their protection and implementation. The efficiency of international legal mechanism of ensuring national interests in Russia on the regional and global scale is being analyzed and assessed. The priorities of international legal cooperation in the context of ensuring national security and protection of national interests are determined. The scientific novelty lies in the statement that sequential analysis of the problems, which emerge in terms of building the system of national security and in the sphere of fulfilling national interests, may significantly affect the theoretical-substantive  and technical-legal aspects of the regulatory-protective activity, establish a closer correlation between the fundamental elements of Russian legal system, including elements of the mechanism of ensuring national security.

The role that Responsibility to Protect (R2P) played in United States' decision to intervene in Libya in 2011 received wide coverage in academic and policy circles. While Executive Branch's legal justification for taking action in Libya without Congressional authorization was not premised solely on humanitarian grounds, R2P is a key plank in President Obama's foreign policy. Other commentators have discussed role of R2P in international law, but a major domestic legal question remains: does President have power to unilaterally deploy military forces on R2P missions with no direct U.S. national security interests at stake? This Note argues that though past unilateral Executive deployments of military force were justified primarily on U.S. national security interests, due to (1) evolution of President's national security powers, and (2) President's ability to define the national interest, Executive has constitutional power to send U.S. military forces into harm's way on purely humanitarian missions without consent of Congress. Yet unilateral deployments may produce unintended consequences, as seen in Africa and Syria after Libyan intervention. In light of these events, this Note lays out a proposed solution to constrain President's ability to conduct such unilateral missions: Congress must pass legislation to check Executive's ability to conduct R2P deployments, and judiciary must be willing to enforce such legislation.I. IntroductionIn 2011, President Barack Obama ordered U.S. military to provide logistical and combat support for NATO forces to conduct a series of strikes against Colonel Muammar Quaddafi's regime in Libya without Congressional authorization.1 According to Department of Justice's Office of Legal Counsel (OLC) and State Department Legal Advisor Harold Koh, President possessed power to order involvement of U.S. military forces in combat situations in Libya without Congressional approval because (1) important national security interests were at stake; and (2) this intervention did not rise to threshold of a war for Constitutional purposes.2 The two important national security interests Koh cited were (a) maintaining credibility of United Nations (U.N.) Security Council, and (b) regional stability.3 While discussing what preserving regional stability meant, President stated that a humanitarian crisis would ensue without U.S. intervention.4Keying in on role that humanitarian purposes played in U.S. decision to intervene in Libya and subsequent U.N. Security Council debates over situation in Libya, scholars hailed or decried Libyan intervention as fruition of Obama Administration's effort to promote Responsibility to Protect (commonly, R2P) Principle.5 R2P is shorthand for emerging international consensus in favor of supporting humanitarian intervention when a state fails to protect its own people, thereby forfeiting its sovereign rights.6 While exact role R2P played in decision-making around Libya is unknown to anyone outside of Executive branch, President's 2010 National Security Strategy is seen in international community as an American endorsement of R2P.7Although Presidential War Powers have expanded since framing of Constitution, adoption of extra-territorial principle of Responsibility to Protect by a U.S. President presents a new question of whether Executive has inherent constitutional authority to unilaterally deploy U.S. military forces in any role - e.g., logistical, advisory, combat, etc. - into a foreign conflict which poses no direct security risk to United States, motivated by purely humanitarian grounds, and without Congressional authorization. The legitimacy of taking such an action is not uniformly accepted, and some U.S. Senators have publicly indicated that they do not believe President has such power. …

Illegal migration is publicly dangerous, harmful, criminal phenomenon, which really threatens to national security of many countries. The issue of providing the proper state of national security is of greater actuality for Ukraine. Therefore, the issues of scientific analysis of the relationship of migration and national security, making suggestions for the improvement of counteraction to illegal migration, taking into account the threats which it creates, are very important. The problem of the organized illegal migration of population is studied by experts as one that requires an urgent solution. The indicated form of migration was transformed into highly profitable criminal business, became the important element of the transnational organized crime. The latter has already gone beyond the interests of national security, since it threatens to political stability and economic development of many world countries, it results in serious violations of human rights, development of parallel economy, which feeds crime. The relevance of the problem of the organized illegal migration predetermines the increased attention to it both by separate countries and at international level, requires urgent development and introduction of new effective measures of counteraction. Aggression of the Russian Federation and caused mass internal moving of population in our country, Ukraine’s approaching to the EU and introduction of the visa-free arrangements with most Member States of the EU stipulated the cardinal change of approaches in regulating migration processes, transition from repressive methods to prevention. Therefore the present system of counteraction to the organized illegal migration requires an improvement by effective application of administrative measures to illegal migrants in combination with bringing their traffickers to criminal liability and other measures of migratory sphere’s regulation. Thus, granting priority to national interests in the state migration policy at the admissible restriction of human right to free movement is very important.

This chapter analyses the concept of the “national security interest”, which is widely recognised as allowing a state to determine which areas of its economy are restricted or prohibited to foreign investors. This chapter seeks to identify what constitutes a threat for a state and how that threat is managed both domestically and internationally. Despite the recognition of a state’s right to take measures it considers essential to its security, there are limits. The rules established by the Organisation for Economic Co-operation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD) and other international instruments are non-binding but can serve as a guide for states in determining the limits of the national security approach. International investment agreements can restrict the right of states to take security-related measures. Finally, customary international law, in light of the good faith obligation, can serve as a basis for assessing measures taken by a state and pave the way for a better balance between the rights of a state and those of foreign investors.

The balance between national security and economic interests at play in the United Kingdom’s ‘China policy’ has significantly evolved in the post-Cold War era. As the first recipient of Chinese foreign direct investments (FDIs) in Europe but also a close ally of the United States, the United Kingdom has faced difficult trade-offs in formulating its policy towards the People’s Republic of China (PRC). This chapter investigates how London has responded to China’s growing foothold in the United Kingdom through increased FDIs and the supply of advanced telecoms equipment for the digital infrastructure. It will be shown that Chinese inroads into these strategic sectors in the 2010s—and British policymakers’ perception thereof—have been a key driver of change in the United Kingdom’s ‘China policy’. In particular, heightened threat perceptions, coupled with increasingly competitive economic relations with the PRC, have caused the United Kingdom to recalibrate the national security and economic interests at stake in its ‘China policy’ and to harden its stance towards Beijing. To corroborate this argument, the first two sections examine two key drivers of the United Kingdom’s ‘China policy’, namely the shifting British economic interests with China—including the Chinese economic imprint in the national infrastructure and in the telecoms sector—and London’s threat assessment of the PRC. The subsequent two sections show how changing economic interests and threat perceptions have, in turn, caused the United Kingdom to recalibrate its policy goals and to strengthen the policy instruments leveraged to achieve such goals. The chapter also discusses the consequences of Brexit for the United Kingdom’s ‘China policy’ and for its cooperation with other European powers.

The use of information resources by the police is associated with the processing of significant amounts of information.Among its varieties, a special place is occupied by information about an individual (personal data).The protection of personal data, as indicated, for example, in paragraph 103 of the decision of the European Court of Human Rights in the case of «S. and Marper v. the United Kingdom» of 4 December 2008 (Applications No. 30562/04 and 30566/04), is of fundamental importance for the exercise by an individual of his right to respect for private and family life (Article 8 of the European Convention on Human Rights). National legislation must provide for appropriate guarantees to prevent any use of personal data that may conflict with the guarantees of this Article. The need for such precautions is even greater when it comes to the protection of personal data that undergo automatic processing, not least when such data are used for police purposes.Thus, Article 8 of the European Convention on Human Rights enshrines the right of everyone to respect for their private and family life, home and correspondence. Although this right is not absolute, and it may, of course, be limited. State author- ities may interfere with the exercise of this right, but only in accordance with the law, when it is necessary in a democratic society in the interests of national or public security or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.The main condition for the lawfulness of the interference is the presence of a direct indication of this in the law. In addition, there are other important requirements, namely: the quality of the law, proportionality of the intervention, etc. Accordingly, employees of the National Police must be clearly aware of the requirements of the legislation on the protection of personal data, because every day they are faced with the need to carry out various operations on the processing of personal data.From here we can explain in detail the content of the duty of police officers to respect human and civil rights, and in particular, respect for the right to non-interference in personal and family life, provided for in Article 32 of the Constitution of Ukraine.

Technologically advanced artificial intelligence (AI) is making a significant contribution to strengthening national security. AI algorithms facilitate the processing of vast amounts of information, increasing the speed and accuracy of decision-making. Artificial intelligence and machine learning (AI/ML) are crucial for state and integrated hybrid attacks and protecting new threats in cyberspace. Existing AI capabilities have significant potential to impact national security by leveraging existing machine learning technology for automation in labor-intensive activities such as satellite imagery analysis and defense against cyber attacks. This article examines selected aspects of the impact of artificial intelligence on enhancing a state’s ability to protect its interests and its citizens., artificial intelligence through the use of neutron networks, predictive analytics and machine learning algorithms enables security agencies to analyse vast amounts of data and identify patterns indicative of potential threats. Integrating artificial intelligence into surveillance, border control and threat assessment systems enhances the ability to respond preemptively to security challenges. In addition, artificial intelligence algorithms facilitate the processing of vast amounts of information, increasing the speed and accuracy of decision-making by police authorities. The rapid development of AI raises a number of questions for its use in securing not only national security but protecting all citizens. In particular, it is worth answering the question How does artificial intelligence affect national security and clarifying the issue of how law enforcement agencies can use artificial intelligence to maximise the benefits of the new technology in terms of security and protecting communities from rising crime. The analysis is based on a descriptive method in describing the phenomenon; by explaining the concepts and applications of artificial intelligence to determine its role in the national security sphere. An analysis of the usefulness of artificial intelligence in particular in police operations is undertaken, with the aim of defending the thesis that, despite some threats to the protection of human rights from AI, it is becoming the best tool in the fight against all types of crime in the country. Technological advances in AI can also have many positive effects for law enforcement, and useful for law enforcement agencies, for example in facilitating the identification of persons or vehicles, predicting trends in criminal activities, tracking illegal criminal activities or illegal money flows, flagging and responding to fake news. Artificial intelligence (AI) has emerged as one of the biggest threats to information security, but efforts are being made to mitigate this new threat, but also to find solutions on how AI can become an ally in the fight against cyber-security, crime and terrorist threats. Artificial intelligence algorithms search huge datasets of communication traffic, satellite images and social media posts to identify potential cyber security threats, terrorist activities and organized crime. It is advisable, when analyzing the opportunities and threats that AI poses to national and public security, to gain a strategic advantage in the context of rapid technological change and also to manage the many risks associated with AI. The conclusion highlights the impact of AI on national security, creating a range of new opportunities coupled with challenges that government agencies should be prepared for in addressing ethical and security dilemmas. Furthermore, AI improves predictive analytics, thereby enabling security agencies to more accurately anticipate potential threats and enhance their preparedness by identifying vulnerabilities in the national security infrastructure

National unity and independence, territorial integrity, people's sovereignty and national security are the supreme priority for any sovereign and independent country across the world. The essence of national unity and security is the most important and highly sensitive issue for Nepal in account of its geopolitical sensitivities and geostrategic balance as Nepal is located between two giant nuclear countries and rising global powers – India and China. Analyzing the national interests and national security policy of all three countries – India, China and the US, it is open secret that they have direct strategic, defense and security interests in Nepal. They, therefore, have strategic rivalry to extend their political, diplomatic, economic, strategic, defense and security and cultural influence in Nepal because of its geopolitical importance and geostrategic sensitivity. The emerging triangular strategic rivalry may undermine Nepal’s national interests and national security in the future as their rivalry gets intensified. It is a grave situation for Nepal which will have significant immediate as well as long-term implications. Nepal, therefore, should thoughtfully study to analyze the emerging global powers’ defense, military, security and foreign policies and strategies and should protect and preserve Nepal’s national interests and national security maintaining diplomatic and strategic balance among them.

The penal jurisdiction of the Hong Kong Special Administrative Region has a unique legal status under the framework of the “ one country, two systems “ policy and the “ Basic Law of Hong Kong. “After the return of the Hong Kong SAR, it enjoys independent judicial power and final adjudication power according to law. Its penal jurisdiction reflects a high degree of independence and universality on the basis of the principle of territoriality, covering the vast majority of criminal cases occurring in Hong Kong. However, the exercise of this power has a clear scope, including being limited by the original legal system and principles, excluding jurisdiction over the conduct of the State, and being uniformly arranged by the central government in case of war or emergency. The operation mechanism of penal jurisdiction in the Hong Kong Special Administrative Region is a self-contained system, covering three stages of investigation, prosecution and trial. It is independently completed by local law enforcement and judicial institutions according to law, which embodies the high degree of autonomy and procedural independence of the criminal justice system in the Hong Kong Special Administrative Region. The penal jurisdiction of the Hong Kong SAR and its operating mechanism reflect the fundamental requirements of the principle of national sovereignty and meet the practical requirements of “ one country, two systems. “ In the future, in the field of safeguarding national security affairs, we should strengthen the connection between the local penal jurisdiction of the Hong Kong Special Administrative Region and the direct jurisdiction of the central government, ensure that the “ one country, two systems “ is stable and far-reaching, and effectively safeguard national sovereignty, security and development interests.

In light of the intertwining logics of military competition and economic interdependence at play in US-China relations, this book examines how the United States has balanced its potentially conflicting national security and economic interests in its relationship with the People's Republic of China (PRC). To do so, it investigates a strategically sensitive yet under-explored facet of US-China relations, the making of American export control policy on defense-related technology to China since 1979. On the basis of 199 interviews, declassified documents, and diplomatic cables leaked by Wikileaks, two major findings emerge from this book. First, the hopelessness, in the post-Cold War era, of a US strategy of military/technology containment of China in the same way it did with the Soviet Union during the Cold War because of the erosion of its capacity to restrict the transfer of defense-related technology to the PRC. Secondly, a growing number of actors in Washington has reassessed the nexus between national security and economic interests at stake in the US-China relationship – by moving beyond the Cold War trade-off between the two – in order to maintain American military preeminence vis-à-vis its strategic rivals. By focusing on how states manage the heterogeneous and potentially competing security and economic interests at stake in a bilateral relationship, this book seeks to shed light on the evolving character of interstate rivalry in a globalized economy, where rivals in the military realm are also economically interdependent.