Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russia

Published on October 5, 2015        Author: 

I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.

The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.

Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.

Read the rest of this entry…

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New EJIL:Live Extra! Joseph Weiler and Benedict Kingsbury Discuss Editing International Law Journals

Published on October 4, 2015        Author: 

The EJIL: Live Extras series comprises short video conversations with leading international law scholars. In our latest EJIL: Live Extra! our Editor-in-Chief Professor Joseph Weiler discusses with Professor Benedict Kingsbury of NYU Law School/University of Utah and co-Editor-in-Chief of the American Journal of International Law the current and future directions planned for AJIL and compare notes on the ins and outs of running an International Law journal. The interview was recorded at the European University Institute in June 2015.


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Filed under: EJIL Analysis, EJIL: Live!

Announcements: Oxford Global Justice Lecture; CfP 2016 Barcelona Workshop on Global Governance; CfP Fifth PEPA/SIEL Conference; Postdoc Positions Copenhagen; Workshop on Framing the Subjects and Objects of Contemporary EU Law; Ph.D. Researcher Positions Utrecht; Accountability for Transnational Counter-terrorism Operations; International Law Weekend Conference; New Blog, Rights!

Published on October 3, 2015        Author: 

1.  Oxford Global Justice Lecture 2015: The annual Oxford University Global Justice Lecture will be given by Judge Sir Christopher Greenwood KCMG QC (International Court of Justice) on Monday 12 October at 5.30pm. The topic of the lecture is “State Immunity and Human Rights”. The Oxford Global Justice Lecture is delivered each year, at the Faculty of Law, University of Oxford by a leading figure in international law. The lecture series is generously supported by the Planethood Foundation. Previous lecturers are Patricia O’Brien, then Under-Secretary General for Legal Affairs at the United Nations (2013) and Judge Theodor Meron, President of the International Tribunal for the former Yugoslavia and President of the UN Mechanism for International Tribunals (2014). For details see here.

2. Call for Papers: 2016 Barcelona Workshop on Global Governance: Adaptation and Change in Global Governance. IBEI (Institut Barcelona d’Estudis Internacionals) and ESADEgeo (ESADE Business School’s Center for Global Economy and Geopolitics) will host the fourth edition of the Barcelona Workshop on Global Governance, an international workshop to discuss questions relating to global governance, on 4-5 February 2016. The workshop will focus on ‘Adaptation and Change in Global Governance’. Confirmed keynote speakers include Pascal Lamy (former Director-General of the World Trade Organization) and David Held (Professor of Politics and International Relations, Durham University). The organisers invite abstract submissions by 21 October 2015 from scholars of all related disciplines and all levels of seniority. Further information, including details for abstract submissions, is available here.

3. Call for Papers: Society of International Economic Law and University of Luxembourg, Fifth PEPA/SIEL Conference. SIEL’s Postgraduate and Early Professionals/Academics Network (PEPA/SIEL) and the Research Unit in Law of the University of Luxembourg are pleased to announce that the fifth PEPA/SIEL Conference will take place on 14-15 April 2016 in Luxembourg. We invite graduate students (enrolled in Master or PhD programmes) and early professionals/academics (generally within five years of graduating) to submit papers on any IEL topic. One or more senior practitioners and academics will comment on each paper after its presentation, followed by a general discussion. More information, including the process for submissions by 16 November 2015, can be found here. Read the rest of this entry…

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Filed under: Announcements and Events

Authors’ Concluding Response: Assessing the Case for More Plurilateral Agreements

Published on October 2, 2015        Author: 

We have profited a lot reading the responses to our article by our three colleagues. Undoubtedly, this discussion will help us streamline our thinking going forward, since we believe the discussion regarding the institutional design of the WTO is about to start. Indeed, the passage from the Tokyo round ‘GATT clubs’ approach to the ‘WTO single undertaking’ was not discussed in depth among the institutional stakeholders. It is high time it takes place now, and this is what we hope our contribution will help happen.

We would like at the outset to set the record straight regarding property rights on this issue. We claim no originality in making a case for more plurilateral agreements (PAs). The main contribution on this front is a paper by Robert Z. Lawrence (2006), to which we refer a number of times in our article, and which, surprisingly had been left unanswered. Lawrence brought together discussion that preceded him, and provided a clear framework to think in concrete policy terms about clubs within the multilateral system. Academic literature on ‘clubs’ or ‘codes’ (the term used during the Uruguay round, in the GATT, and more generally, “minilateral” liberalization and cooperation goes back to the 1980s). A notable contribution on this score is B. Yarborough and R. Yarborough (1992), Cooperation and Governance in International Trade: The Strategic Organizational Approach.

Our basic point, simply put is that there are three factors that all bolster the case for PAs, and the ensuing ‘club of clubs’ approach originally advocated by Lawrence almost ten years ago. These factors are:

  • the proliferation of PTAs (preferential trade agreements) following the advent of the WTO, that is, at a time when tariffs are at an all-time low. Modern PTAs deal to a significant extent with regulatory matters;
  • the geo-political dynamics associated with the rise of China and other emerging economies; and
  • the fact that the trade agenda increasingly centers on regulatory differences, an area where the ‘single undertaking’ approach has not proved to be much of a success.

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Whose Club Is It Anyway? PTAs 2.0 and the Creeping Non-Trade Rules

Published on October 1, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here. For other comments see here.

Bernard Hoekman and Petros Mavroidis’s article comes at an important time for the WTO. Alternatives to the multilateral trade talks have always existed, both outside the WTO (PTAs) and within it (PAs). However, the repeated failure of Doha talks to deliver meaningful results is leading PTAs to take an ever more important role. Their capacity to displace WTO rules has so far been limited, in no small part because they do not cover trade between the largest WTO Members. This is about to change, however, if TTIP and TPP really get off the ground – one could add to the list the China-led Regional Comprehensive Economic Partnership (RCEP). We may call these agreements PTAs 2.0. Both the US and the EU have been signing similar deals with third parties over the past two decades. A PTA 2.0 between the two would amount to a fait accompli to everyone else regarding a number of issues. To avoid a fragmentation of global rules, Hoekman and Mavroidis propose to expand the scope of intra-WTO plurilateral agreements, and incorporate the rules conveyed in PTAs 2.0 into WTO law, as PAs if necessary.

I should begin by saying that I am generally suspicious of the argument that the WTO has somehow become too big for consensus decision-making. It is not the world’s Cubas, Venezuelas and Nicaraguas that are halting trade talks (even if they can delay results for a few hours). If we are to go beyond consensus, it seems reasonable to state whose veto it is we expect to overcome. In this case, it seems that it is mainly large developing countries – in particular India, who has repeatedly been playing spoilsport in trade talks, but perhaps China and Brazil as well – who will be given an option between accepting the incorporation of PTAs 2.0 into the WTO or being left out of trade rules 2.0.

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Flexibility or Gridlock? The Promises and Perils of Popularizing Plurilateral Agreements at the WTO

Published on October 1, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here. For other comments see here.

Professors Bernard Hoekman and Petros Mavroidis’ EJIL article WTO ‘a la carte’ or ‘menu du jour’? Assessing the Case for More Plurilateral Agreements provokes much thought on opportunities for achieving better flexibility and neutralizing gridlocks at the WTO. The article was published soon after WTO Director General Roberto Azevedo lamented the organization’s failure to reach a work programme under the Doha Development Agenda (DDA) under its 31 July 2015 deadline, which could conceivably impede trade negotiations at the next WTO Ministerial Conference at Nairobi in December 2015. Professors Hoekman and Mavroidis provide a brilliant exposition of the factors to be considered in using the plurilateral agreement (PA) route while attempting to build multilateral agreement on more frontiers of world trade.

While I completely agree with Professors Hoekman and Mavroidis that more ‘variable geometry’ is needed now to breathe life into the trade negotiations mandate of the WTO, I do wonder whether devoting organizational resources at this stage to develop a PA ‘code of conduct’ with transparent terms on the mode of negotiating issue-specific PAs, is something that the WTO can politically afford at this stage of institutional stagnation and negotiations inertia over the DDA. A PA duly approved by the WTO membership under Art. X.9 of the WTO Agreement could indeed be a viable path to achieve harmonization and discipline over non-tariff measures, but how could this be harnessed to incentivize reaching a multilateral agreement among WTO members? If the two remaining PAs to date – on civil aircraft and government procurement – have not been universally ratified or widely opted into by WTO members to date, how can this be done under a strategically-crafted PA (as Hoekman and Mavroidis appear to suggest in proposing more usage of this route under an upfront code of conduct addressing the scope of coverage, e.g. an issue for WTO Plus, or a WTO Minus X issue on regulatory policy cooperation)?

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Feasibility and desirability of ‘clubs’ within the WTO: A critical comment on Hoekman/Mavroidis’ case for plurilateral agreements (PAs)

Published on September 30, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here

Two phenomena characterize the contemporary world trading system, namely, the deadlock of the Doha Development Agenda (DDA) and the proliferation of preferential trade agreements (PTAs), in particular, mega-FTAs such as Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP). The former illustrates the difficulty of the 161-member WTO in reaching consensus in trade negotiations, and this may have been one of the driving forces for the latter. Proliferation of PTAs has both pros and cons for the world trading system. On the one hand, PTAs facilitate trade liberalization between the parties, and they may be an incubator of new rules governing global trade and investment. On the other hand, PTAs may have trade diverting effects for non-parties. Their proliferation may result in the fragmentation of rules for global trade and investment. To sum up, the contemporary world trading system is suffering from the decay of the multilateral trading system and the disorderly proliferation of PTAs. Hoekman and Mavroidis’ recent article, titled “WTO ‘à la carte’ or ‘menu du jour’?”, published in the latest issue of the EJIL (Vol.26, No.2), tries to find a breakthrough in the world trading system by advocating the use of plurilateral agreements (PAs).

They are not the pioneers of advocating PAs. For instance, Richard Baldwin, in his article in 2012 (Richard Baldwin, “WTO 2.0: Global governance of supply chain trade”, Centre for Economic Policy Research Policy Insight No.64, December 2012), advocated a ‘WTO2.0’, which is practically a PA with limited membership, consisting of those WTO members who accept high-level rules that secure the well-functioning of global supply chains, without the special and differential treatment (S&D) to developing countries which is incorporated in the current WTO Agreements, or WTO1.0. A similar proposal was made by Michitaka Nakatomi in his article in 2012 [Michitaka Nakatomi, “Exploring Future Application of Plurilateral Trade Rules: Lessons from the ITA and the ACTA”, RIETI (Research Institute for Economy, Trade and Industry) Policy Discussion Paper 12-P-009, May 2012]. These proponents of PAs and Hoekman/Mavroidis share the common view of the contemporary world trading system. First, they regard the stalemate of the DDA as a result of the incapacity of the WTO in meeting the needs of the 21st century global trade, characterized by the globalization of value chains. Secondly, they regard the proliferation of recent RTAs, in particular mega-FTAs, as attempts by major trading countries to meet such needs. Thirdly, however, they don’t think of the proliferation of RTAs as an optimal solution to the challenges of the 21st century global trade, mainly because it might result in the fragmentation of rules for global trade and investment.

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WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements

Published on September 30, 2015        Author: 

Editor’s Note:  This is the first in a series of posts discussing the article in the current issue of EJIL Vol. 26 (2015) No 2, by Bernard Hoekman and Petros Mavroidis. There will be subsequent  posts  discussing the article, over the next couple of days, by Junji Nakagawa, Diane Desierto, and Geraldo Vidigal.

The WTO and … ‘clubs’

The long-running Doha Round deadlock illustrates how difficult it has become to get agreement on new rules of the game among 161 WTO Members. The Agreement on Trade Facilitation that was negotiated at the 2013 WTO Ministerial meeting in Bali demonstrated that this is possible, but the proliferation of preferential trade agreements (PTAs) illustrates that many countries have been moving away from using multilateral trade agreements to liberalize international commerce and agree to new policy disciplines. Recent examples of PTAs that involve major trading nations include the agreements signed by Korea with the EU and the US and the ongoing Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations. It may be that one of the consequences of the Doha deadlock has been to give countries greater incentives to engage in PTAs. But there may be a reverse causality effect as well: the existence of the PTA option may reduce the incentive to agree on rules on a multilateral basis. Whatever the case may be, the proliferation of PTAs results in fragmentation of the global trading system and generates substantial information and transactions costs for traders.

There has been some action in the WTO on market access issues. This has taken the form of so-called critical mass agreements, under which concessions negotiated among a subset of countries are extended to all WTO Members a nondiscriminatory, most-favoured-nation (MFN) basis. Examples include ongoing negotiations to liberalize trade in environmental goods and the effort to extend the coverage of sectoral initiatives to liberalize trade, most notably the 1997 Information Technology Agreement (ITA). Critical mass agreements have always been an important mechanism in the GATT/WTO setting: if enough large players participate in a liberalization exercise they need not worry about free riding by other countries that do not want to participate.

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An Assessment of the Colombian-FARC ‘Peace Jurisdiction’ Agreement

Published on September 29, 2015        Author: 

Last week Wednesday (23 September 2015), Colombian President Juan Manuel Santos met in Cuba with the leader of the Colombian guerrilla movement FARC (alias Timochenko”), to publicly announce the agreement to establish a ‘Special Peace Jurisdiction’ reached between the Government and FARC. This is certainly a milestone in the Colombian peace process. While many local and international voices (including heads of government and State of other countries) have been supportive of the agreement (see here and here), a few have rejected its content considering that it fosters impunity. Among those who have objected to the agreement is Alvaro Uribe, the former Colombian president who has been very vocal in his opposition to the conditions of the current peace process and has favored either a militaristic strategy or one in which the guerrilla members subject themselves to ordinary criminal sanctions.

Given the controversy, it is worth briefly considering whether, as critics pose, the agreement would be contrary to international law standards or whether, according to its supporters, it is not only consistent with them but proves to be a unique opportunity to end the conflict with the FARC, which is the oldest operating guerrilla movement in the world.

To do this, it is necessary to briefly look at the content of the agreement. In assessing the agreement, it is important to bear in mind that its full contents are yet to be revealed, and indeed some aspects have not been fleshed out fully. However, the main points of the agreement are set out in the oral statements of the Colombian President and, in greater detail, in written form in a joint communiqué, which can be found (in Spanish) in the official webpage of the Colombian presidency.

The “Special Peace Jurisdiction” – A new Mixed Tribunal?

The key aspect of the agreement is the creation of a judicial body –  ‘Special Peace Jurisdiction’ – which will make decisions on cases related to the Colombian armed conflict and has the capacity to issue extraordinary decisions that differ from those of ordinary criminal trials. The members of the body will mostly be Colombians but it will also include a few foreigners (point 3 of the joint communiqué). Read the rest of this entry…

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Human Rights Treaties and Foreign Surveillance

Published on September 28, 2015        Author: 

A quick heads-up that the final version of my article on Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, is now available on the website of the Harvard International Law Journal. The article grew from a series of posts I did here on this topic. The published version also contains a postscript addressing some of the recent developments after the piece was accepted for publication; see here generally for the blog’s coverage of surveillance issues.

In the meantime the UN Human Rights Council has appointed Prof. Joseph Cannataci of the University of Malta as the first special rapporteur on privacy. His candidacy enjoyed significant support from privacy organizations, while his election took no small amount of politicking, with the German president of the Council overruling a proposal made by a five-state consultative group, which favoured Estonian Prof. Katrin Nyman-Metcalf, who was perceived as not being sufficiently critical of mass surveillance practices. Prof. Cannataci, on the other hand, has already come out with harsh criticisms of digital surveillance programmes; he inter alia “described British surveillance oversight as being “a joke”, and said the situation is worse than anything George Orwell could have foreseen.”

Hyperbole aside, Prof. Cannataci has also called for the adoption of a “Geneva Convention” for the Internet “to safeguard data and combat the threat of massive clandestine digital surveillance.” And a couple of days ago Edward Snowden and a group of activists came out with one such proposal, labelled the “International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers,” or the “Snowden Treaty” for short. Only a short and uninformative summary seems to be publicly available at this time.

I must say that I have grave misgivings about such proposals (with the caveat that the proposed draft has not yet been published). First of all, proposing such a new treaty implies that the existing legal framework is incapable of meaningfully regulating surveillance practices, despite the relevant privacy provisions in the ICCPR, the ECHR and the ACHR, and despite existing case law and materials (especially from the Strasbourg Court). In other words, proposing a binding gap-filling instrument assumes that a regulatory gap exists. Secondly, politically it seems exceptionally unlikely that any of the major players in the surveillance sphere (e.g. the US, UK, Russia, China), not to mention authoritarian regimes in many smaller states, would agree to any binding multilateral treaty in the foreseeable future, let alone to a comprehensive “Geneva Convention for the Internet.” Nor will the “Snowden Treaty” label make this proposed agreement any more politically palatable. So it’s just completely unclear to me what a feel-good, pie in the sky proposal such as this one is actually going to achieve, except needlessly waste precious political energy and undermine efforts to regulate surveillance and other intrusive cyber practices under the existing legal framework.

But let’s wait and see. In the meantime, Jessup competitors this year will have a nice, fat surveillance case to litigate before a fictional ICJ, and best of luck to them.

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