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Afghanistan accedes to Additional Protocols to Geneva Conventions: Will AP II govern the conflict in Afghanistan?

Published on June 30, 2009        Author: 

Last week (June 24) Afghanistan acceded to Additional Protocols I & II to the Geneva Conventions. These treaties continue to inch towards univeral participation as there are 169 States parties to AP I and 165 party to APII. The ratification by Afghanistan ruins, somewhat, the point I usually make in class when introducing the Geneva Conventions and its APs.  I point out that though the APs are among the most widely ratified treaties, the list of States not parties to them is practically a list of  countries that have been involved in major armed conflicts over the last 30 years. The Additional Protocols will enter into force 6 months after the deposit of the instrument of accession by Afghanistan, i.e at the end of December. This means that from that date, AP II (which applies to non-international armed conflicts) will apply to the conflict in Afghanistan (i) in so far the conflict takes place between the forces of the government of Afghanistan and insurgents; and (2) in so far as the Taleban and other insurgents “exercise such control over a part of [Afghanistan’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (Art. 1(1) APII)  This second condition is often seen as a weakness of APII and is a condition not required by Common Art. 3 of the GCs, which also applies to non-international armed conflicts. However, that condition appears to be fulfilled in the case of Afghanistan as reports indicate that between 50 to 72% of that country are controlled by the Taleban or have a Taleban presence.

Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. This would indicate yet another weakness of APII (in additon to the fact that it provides only rudimentary provisions for the non-international conflicts it covers). If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. Read the rest of this entry…

 

EJIL’s 20th Anniversary Symposia Issues – Reactions invited

Published on June 25, 2009        Author: 

As our readers will know, EJIL has been publishing Symposia issues to commemorate the 20th Anniversary of its founding.

In Issue 4 of its Anniversary Year, EJIL plans to publish a selection of reactions to articles which appeared in its three Anniversary Symposia in Issues  1-3 and the three Anniversary Articles which will feature in those issues. We will select the best of the Blog, but also invite readers of the blog who may be interested in writing a reaction to pieces which were not featured on the blog to contact the Editor in Chief (joseph.weiler {at} nyu(.)edu). Reaction pieces should be in the range of 3000 words.

Filed under: EJIL, EJIL: Debate!
 
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Invitation to contribute to EJIL: Science and International Law

Published on June 25, 2009        Author: 

EJIL is interested in publishing articles addressing the theme of  “Science and International Law.” This theme is understood broadly and could include:

  • International law and genetically modified organisms (GMOs)
  • International law and the internet
  • International law and the uses of science in environmental regimes
  • International law and the uses of science as proof
  • International law and the status of scientific expertise

Of particular interest are contributions which develop conceptual and theoretical approaches, and which consider the challenges of using science in international litigation. Readers of the blog who are working in this area and have advanced drafts who would be interested in publishing their work in EJIL should contact Professor JHH Weiler, our Editor-in-Chief. (joseph.weiler {at} nyu(.)edu)

Filed under: EJIL, EJIL: Debate!
 
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International Investment Arbitration: Poisoned at the Root?

Published on June 24, 2009        Author: 

 Tolga R Yalkin is a graduate student in the Faculty of Law, University of Oxford and President of Oxford Pro Bono Publico, a public interest law program of the Oxford Law Faculty. His Oxford thesis considers the international minimum standard of treatment in international investment law.

 Earlier this month, the British Institute of International and Comparative Law (‘BIICL’) held its annual conference in London and focussed on the theme of “Business and International Law” in London on 5 June 2009. Together with Professor M Sornarajah (National University of Singapore), Professor Peter Muchlinski, (University of London) and Sylvia Noury (Freshfields Bruckhaus Deringer), I spoke on one of the panels. The discussion in our panel revolved around international investment arbitration, with the two senior panellists focusing on broader systemic developments, and the latter two on specific technical areas of international investment law. In this post, I wish to reflect on the proposition by Professor Sonarajah-one of the doyens of international investment law-that the expansion of jurisdiction by international investment tribunals offers evidence that the investment treaty system is intrinsically pro-business.

Sornarajah advanced the proposition-enjoying increasing purchase in the international legal community-that bilateral and multilateral investment agreements and the system of international investment arbitration was conceived, and indeed continues to operate, on a number of false assumptions. Foremost among these is the ‘hunch’ that a system of international investment arbitration would significantly increase the inflow of capital to developing countries, bringing with it wealth and development to some of the world’s poorest citizens. According to Sonarajah,this justification has been promoted by neo-liberal business interests-rather than arising from genuine social concern, Furthermore, he claims that the system has ‘entrenched’ itself by providing arbitrators and international law firms-for whom the system ‘produces golden eggs’-with vested interests. The result, as he sees it, is that the system is intrinsically geared towards the interests of business and capital-exporting States. In support of this contention he provides examples that illustrate the expansion of jurisdiction enjoyed by tribunals.

Sornarajah believes that the examination of the way in which jurisdiction has been expanded will permit us to determine: (1) whether the system can be ‘salvaged‘; and (2) what measures might be adopted it this respect.

Despite painting a compelling picture of what he sees as the true nature of international investment arbitration, Sornarajah’s submission must be seen, at best, as a starting point for further inquiry. The main flaw of his approach is that reaching firm policy conclusions requires more than polemic arguments and anecdotal examples; Read the rest of this entry…

 

Comment on Benvenisti & Downs’, ‘National Courts, Domestic Democracy, and the Evolution of International Law’

Published on June 23, 2009        Author: 

Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea, and in ICSID arbitrations. She has also appeared in cases raising international law issues in English courts, including before the House of Lords.

 In this comment on Benvenisti and Downs’ fascinating article, I set out some thoughts from the perspective of an English legal practitioner.

The English courts have been creative in developing legal rules and principles to avoid adjudicating on what have traditionally been considered to be core executive functions. Benvenisti and Downs describe such rules as ‘avoidance doctrines’, either ‘doctrines which were specifically devised for such matters, like the act of state doctrine, or general doctrines like standing and justiciability’. As they say, such doctrines ‘provided the executive with an effective shield against judicial review under international law.’ The doctrines of justiciability and act of state have fulfilled this function in English law, though their justification has been framed in terms of the courts’ competence to adjudicate on those issues, rather than in terms of protecting the executive from scrutiny, or protecting the courts themselves from difficult decisions or political criticism.

Certainly before the English courts, these ‘avoidance doctrines’ have been significantly eroded in recent years. Benvenisti and Downs’ article suggests that this erosion is part of a broader international trend, at least among ‘national courts from prominent democratic states’. English law continues to recognise an area of non-reviewable executive power, but it is shrinking.

Read the rest of this entry…

 
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“National Courts, Domestic Democracy, and the Evolution of International Law”: A summary in the context of our current research

Published on June 22, 2009        Author: 

Eyal Benvenisti is Professor Human Rights Law at Tel Aviv University and George Downs is Professor of Politics at New York University. Their Article “National Courts, Domestic Democracy, and the Evolution of International Law is published in the current volume (20) of EJIL and is available here.

1. The Impact of Globalization on National Courts

           Traditionally, the common practice of national courts across the globe has been to avoid any application of international law that would clash with the position of their governments, a deference that helped to insure their executive branches unfettered discretion in external affairs. In recent years, however, national courts have begun to venture into the international arena to take issue with the positions of their governments regarding the interpretation of treaties and to constrain what had previously been their free hand in international bargaining. This move into the international realm has been complemented by a newfound willingness on the part of national courts to coordinate with each other in reviewing the acts of international organisations and in collectively interpreting the shared legal texts of international law and comparative constitutional law.

There is little indication that the change is related to any alteration in the process by which judges are selected or to the growing salience of international law school curricula in recent years. The chief motivation of national courts remains that of protecting the domestic rule of law rather than that of promoting global justice. In this essay and elsewhere, we argue that what has changed is the context which national court judges find themselves operating in. The accelerating globalization has altered the assessment of national courts about the nature of the primary threats to the domestic order and the strategies they will need to adopt in order to cope with them.

Since the early 1990s, intergovernmental coordination has become a prerequisite for the regulation of a host of activities in areas such as the environment, national security, and financial markets that had previously been the exclusive province of individual state governments. This coordination effort has been driven and controlled by the executive branches of the states involved and in most cases dominated by those of the powerful developed countries. As a result, an ever-increasing number of regulatory policy decisions with important domestic consequences issues are being relegated to the fragmented transnational sphere and escaping the scrutiny of the domestic democratic and supervisory processes that had developed over the years through the efforts of civil society, legislatures and courts. Under these conditions the continued passivity of courts in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks serious erosion in the effective scope of judicial review.

 2. The Emergence of Inter-Judicial Dialogue as a Response to Globalization

As a consequence, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial coordination. Fortunately for these courts, they are increasingly discovering that they can help maintain the space for domestic deliberation and strengthen the ability of their governments to withstand the pressure brought to bear by foreign and local interest groups and powerful foreign governments.   Read the rest of this entry…

 
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An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation

Published on June 19, 2009        Author: 

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. In 2005, he was research assistant to Professor Giorgio Gaja, the International Law Commission’s Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of the United Nations for wrongful non-forcible measures by the Security Council. Many thanks are due to Dapo Akande, Gleider Hernández & Devika Hovell. The usual disclaimer applies.

I. Introduction

Municipal and regional courts are increasingly engaged by individuals and legal entities in questions relating to UN Security Council measures adopted under Article 41 of the Charter. Most prominent among these are the ‘targeted sanctions’ imposed by Security Council Resolutions (SCR) 1267 (1999) seq, which provide for asset freezes, travel bans and arms embargoes against persons listed by the Committee established pursuant to SCR 1267 (the 1267 Committee). Usually the relevant SCRs are attacked indirectly before the domestic court, the direct attack being on the domestic implementing measures. In the recent case of Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (Federal Court of Canada; currently available here but also to be made available here shortly), the impugned conduct on the part of Canada which gave rise to a claim for the violation of Canadian constitutional rights began long before any listing by the 1267 Committee. The listing only served to complicate matters and to offer an excuse to Canada with respect to a pattern of conduct that pre-dated the listing. The facts provided the opportunity for the Canadian judge to express what has been on the mind of many with respect to the 1267 regime of ‘targeted sanctions': if you happen to get listed, it is much like being Josef K in Franz Kafka’s The Trial. In this case though-and possibly for the first time-Josef K got an effective remedy.

The Canadian Federal Court held that Canada had violated the constitutional right of Mr Abdelrazik (a dual Sudanese and Canadian national) to enter Canada, even though he was subject to UN sanctions. The court interpreted the SCRs such that the travel ban and asset freeze imposed by the Security Council would not prevent Canada from assisting Mr Abdelrazik’s return to Canada. In so doing, the Canadian court effectively forced upon the Executive its own interpretation of Canada’s obligations under the UN Charter, and required that Canada comply with the court decision. The Court’s interpretation risks a breach by Canada of the SCR and the UN Charter,, should the Security Council interpret its own Resolution differently. The situation is not unlike the one forced upon the European Community and its Member-States following the ECJ’s decision in Kadi: either breach the obligation stemming from the Security Council decision (by removing Kadi’s asset freeze) or disobey the ECJ (by maintaining the freeze). In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law. The case marks yet another step in a new era that sees domestic and regional courts asserting with confidence their (indirect) jurisdiction over UN sanctions regimes.

II. Factual Background

Abousfian Abdelrazik was jailed in Sudan in 1989 after the successful military coup of Omar Al-Bashir. In 1990 he managed to flee to Canada, where he was first granted refugee status and then Canadian citizenship. In March 2003, after some of his acquaintances had been charged or convicted for participating in terrorist attacks, Abdelrazik returned to Sudan, claiming he had been continuously harassed by the Canadian Security Intelligence Service (the CSIS) in the wake of the September 11 attacks (at [9]-[12]). Abdelrazik was detained in Sudan at the request of Canada (id at [66]-[91]) in 2003 and 2005-2006. Read the rest of this entry…

 

The Forest and the Trees/ The Islands and the Sea: A response to Laurence Helfer

Published on June 17, 2009        Author: 

I find myself in the awkward position of being in full agreement with Prof. Laurence Helfer’s criticism of the “broad brush” approach used in my EJIL article to describe trends in international adjudication (this is not surprising; often I find myself nodding in agreement when reading Helfer’s first-rate academic work). When writing overview articles such as “No Longer a Weak Department of Power?“, the dilemma is always whether to focus on the forest or the trees. Obviously, my choice of the “forest” – the general trends in international adjudication – entailed a superficial, almost caricature- like, treatment of the “trees” – the specific courts. Readers of my article would there be well-advised to remind themselves of the many shortcomings of the approach I have selected.

In particular, Helfer is right in noting that regional courts should not be lumped together as a single category for all purposes:

“Many studies of international adjudication appear to assume either that the legal and political dynamics of global or European courts will apply to tribunals in other regions, or that lesser known courts in Africa, Latin America, and Eurasia have done little to merit the attention of scholars.  A growing body of evidence suggests, however, that both assumptions are unwarranted.”

 Indeed, the recent ASIL article by Alter and Helfer focusing on the Andean Court of Justice is an excellent illustration of the unique nature of some regional courts and of the unpredictable way in which their work and impact develops over time.

 Still, I would defend the following position: While the effectiveness of different courts varies dramatically across regions due to the background “legal and political dynamics” that influence their work, the goals set for regional courts upon their establishment tend to converge. This happens, to a large extent, as a result of the “copycat” motivation that leads law-makers to “implant” models of successful legal institutions across regions and regimes. So, for example, the perceived success of the ECHR, has led to the creation of the comparably structured I/A CHR and fledgling African Court of Human Rights (now part of the African Court of Justice and Human Rights). Although the three courts encounter very different legal and political problems and have widely divergent records of achievement (meaning that the “implant” has been sometimes rejected), they appear to share, as a result of their derivation from a common “prototype”, a strong commitment to promoting respect for human rights and to holding member states accountable. Hence, the I/A CHR and the ACHR, like the ECHR, are illustrative of the new ethoi of international courts – enforcing norms and building an international rule of law.

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Comment on Yuval Shany, ‘No Longer a Weak Department of Power?’

Published on June 15, 2009        Author: 

Dr Chester Brown is Associate Professor at the Faculty of Law, University of Sydney, where he is a Programme Coordinator for the Master of International Law. His research interests are public international law, international dispute settlement, international arbitration, international investment law, and private international law. Dr Brown is a Solicitor of the Supreme Court of England and Wales, and a Barrister and Solicitor of the Supreme Court of Victoria and the High Court. He is an Associate Member of the Chartered Institute of Arbitrators, and a door tenant at Essex Court Chambers, London. He is the author of A Common Law of International Adjudication (OUP, 2007), and is a graduate of the Universities of Melbourne, Oxford, and Cambridge.

 

Professor Yuval Shany’s work on international courts and tribunals has made a significant contribution to our understanding of international adjudication in the modern age.  As already noted by Professor Helfer in his comment, Professor Shany’s publications have ‘mapped the field’s coordinates’.  International adjudication is a discipline where the works of public international law’s doyens have long been considered compulsory reading, including those of Rosenne, Fitzmaurice, Lauterpacht (both Sir Hersch and Sir Elihu), Schwarzenberger, Hudson, Verzijl, and Bowett.  And in the age of the ‘proliferation’ of international courts and tribunals, and the accompanying challenges (such as the possible ‘fragmentation’ of international law), it is increasingly difficult to discuss international adjudication in any complete sense without having reference to Professor Shany’s writings. 

In his recent article, No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary, Professor Shany discusses some of the issues arising out of the recent changes in the field of international dispute settlement.  His article offers a clear and succinct overview of the emergence of the many new international courts and tribunals in the past 20 years, including the International Criminal Court, the ITLOS, the Appellate Body of the WTO, and the large number of arbitral institutions and quasi-judicial bodies (p 79).  In addition to the newly created international adjudicatory bodies, the jurisdiction of a number of existing international courts – most notably the Court of Justice of the European Communities and the European Court of Human Rights – has also expanded, due both to an increase in their membership, and also to the reform of their underlying constitutive instruments (p 75).  Professor Shany also notes the marked rise in resort to international adjudication as a means of settling international disputes, as well as an increasing readiness on the part of national courts to apply public international law in resolving ‘politically-charged cases’ (p 75).  He argues that the ‘cumulative effect’ of these developments is the emergence of an ‘international judiciary’ (albeit one that is fragmented), and also the ‘routinisation’ in the application of international law as a means of settling disputes.  Indeed, he argues that ‘international adjudication … is becoming the default dispute settlement mechanism in some areas of international relations’ (p 76).   

Professor Shany then assesses some of the theoretical and practical implications of these developments, and in particular he argues that ‘the rise in the number of international courts and the expansion of their powers should be primarily understood as a change in the ethos underlying the operation of international courts’ (pp 77–83).  He also identifies what he terms ‘blind spots’ of the existing mechanisms for settlement of international disputes by adjudication, the most notable of which are the ineffectiveness of international courts and tribunals in the context of disputes relating to the use of force and the fight against terrorism, and the continuing difficulties in enforcing judgments and awards of international courts and tribunals (pp 83–86).  He then turns to some difficulties that have attended the increase in the number of international courts and the expansion of their jurisdictional powers.  These include the emergence of inconsistent jurisprudence (pp 87–88), and the question whether it is indeed desirable for many international disputes to be resolved by judicial or arbitral settlement, for, in contrast to the diplomatic forms of dispute settlement, adjudication produces results which are ‘binary’, and its confrontational and adversarial nature may even tend to exacerbate the relations between the parties (pp 88–89). 

No Longer a Weak Department of Power? is impressive in the breadth of its coverage, and the issues it raises can generate much fruitful discussion on the past, present, and future of international courts.  In his comment, Professor Helfer has highlighted and elaborated on several issues, being (i) the principal contributions of Professor Shany’s article; (ii) the scope for international courts and tribunals to contribute to the resolution of ‘high politics’ disputes; (iii) and the importance of empirical analysis and the distinctive law and politics of regional tribunals.  In the space remaining, I will pick up on three issues raised by (but not necessarily treated in) Professor Shany’s article – one substantive, one procedural, and one concerning, in a loose sense, remedies.   

 

The first question concerns Professor Shany’s claim concerning the new ‘ethoi’ of international courts and tribunals, a point also noted by Professor Helfer.  Professor Shany recalls that international courts and tribunals were originally created in order to facilitate the resolution of disputes by peaceful means (and discourage the recourse to force), and also to contribute to the development of international law (p 77).   Today, however, many of the existing specialised international tribunals have been created in the context of a particular regime, such as one which promotes, for example, the liberalisation of international trade rules, the protection of human rights and fundamental freedoms, or the economic integration of a regional organisation.  Read the rest of this entry…

 
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Comments on Shany’s “No Longer a Weak Department of Power?”

Published on June 11, 2009        Author: 

 From July 2009, Professor Laurence Helfer will be the Harry R. Chadwick, Jr. Professor of Law at Duke University School of Law. His publications include: “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community”, (2009) 103 Am. J. Int’l L. 1 (with Karen Alter and Florencia Guerzovich); and  Why States Create International Tribunals: A Response to Professors Posner and Yoo,” 93 California Law Review 899 (2005) (with Anne-Marie Slaughter)

 Yuval Shany is a leading international law scholar of international courts and tribunals.  His many publications, including two books in Oxford University Press’s International Courts and Tribunals Series, have literally mapped the field’s coordinates.  His work has explored both the horizontal connections among the burgeoning number of international adjudication mechanisms and vertical relations between international judges and their national colleagues.

 In his recent article, No Longer a Weak Department of Power? Reflects on the Emergence of a New International Judiciary, Professor Shany provides a clear-eyed and succinct overview of changes “in the ethos underlying the operation of international courts” that are the result of an increase in the number of such courts and an expansion of their authority.  Whereas the ground norm that once informed international adjudication was dispute resolution, Professor Shany argues that the new international judiciary emphasizes different values-“the advancement of specific normative and institutional goals,” the maintenance of subject-specific international regimes, and “strengthening the rule of law.”  After describing these “new ethoi,” No Longer a Weak Department of Power? provides a brief tour of the contemporary international judicial landscape, including its peaks (such as the adjudication of international trade disputes and the role of national courts in applying international law) and its valleys (jurisdictional and normative conflicts and compliance problems).

 In this comment, I first highlight what I see as the principal contributions of Professor Shany’s  article.  I then discuss one small ambiguity in the article concerning whether international courts can or should resolve “high politics” and “high profile” disputes, such as those involving the use of force and terrorism.  I conclude by arguing for a more empirically-grounded approach to the study of international courts and tribunals, an approach that includes paying greater attention to the distinctive characteristics of the many regional and sub-regional courts outside of Europe whose increasing activity has been ignored by most scholars.

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