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Ecuador v. United States Inter-State Arbitration under a BIT: How to Interpret the Word “Interpretation”?

Published on August 31, 2012        Author: 

There is an inter-State arbitration pending between Ecuador and the United States under the Bilateral Investment Treaty (BIT) between those two countries (Treaty between United States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993). The Ecuador v. US case , which was initiated in June 2011, is, as far as I am aware, a very very rare instance of inter-State arbitral proceedings under a BIT. As is well known, one of the main purposes of BITs is to give investors the right to bring claims against the host state of investment. This feature of BITs, and the vast number of such treaties, has meant that investor-State arbitrations under BITs have replaced diplomatic protection as the primary means of settling investment disputes. There have been hundreds of investor-State proceedings before arbitral tribunals.  However, BITs also contain compromissory clauses by which disputes concerning the interpretation or application of disputes under these treaties can be brought before arbitral tribunals established under the BIT. The only other inter-State BIT cases that I am aware of are the recent Italy and Cuba cases which were discussed in the April 2012 issue of the American Journal of International Law. In general, States leave it to the investor to protect its rights under the BIT.

The present proceedings brought by Ecuador are particularly interesting for a couple of reasons: one specific to investment law, the other relating to general international law. First of all, as the case arises out of Ecuador’s dissatisfaction with the interpretation given by an earlier investor-State arbitral tribunal (Chevron and Texaco Petroleum Company v. Republic of Ecuador, Partial Award, 30 March 2010) to a particular provision of the Ecuador – US BIT,  the case may be construed as a way by which Ecuador is trying to use the inter-State procedure as a way of appealing the results of a case brought under the investor-State procedure. There have been concerns by many that there is no appellate procedure in the investment treaty system and this case seems to be an attempt to create one.

Secondly, Ecuador’s case raises a general question about how one interprets the standard compromissory clause to be found in treaties where jurisdiction is granted to an  international tribunal over disputes between the parties “concerning the interpretation or application of the treaty”. Ecuador is of the view that the US has a different interpretation from it of a provision of the BIT. However, Ecuador does not argue that the US has violated the BIT, it only seeks to resolve a question about how the BIT should be interpreted. So, does the tribunal have jurisdiction over a case where the parties disagree about how a treaty should  be interpreted but where there is no allegation that the respondent party has actually misapplied the treaty or done any act which constitutes a violation of the treaty. The question is whether this standard formulation of a compromisory clause means that international tribunals can only deal with concrete disputes about violations of treaties or whether they can play a general advisory function with respect to the meaning of the treaty. In short, what is a dispute about “interpretation”of a treaty? Read the rest of this entry…

Filed under: Bilateral Investment Treaties, EJIL Analysis, Inter-State Arbitration
 

The African Union, the ICC and Universal Jurisdiction: Some Recent Developments

Published on August 29, 2012        Author: 

Over the last few years, the African Union (AU) Assembly, (composed of Heads of States and Governments), has concerned itself with a number of issues relating to international criminal law (see previous posts by me here, here, and here; and by Max Du Plessis and Chris Gevers here and here). Last month, the AU Assembly held its 19th Summit and continued the trend of making decisions with regard to international criminal justice (see here for the full text of the Assembly decisions). Earlier this week, Max Du Plessis wrote about the decision of the AU Assembly at this summit to postpone consideration of a draft protocol that would amend the Statute of the African Court of Human Rights and Justice to give it jurisdiction to try international crimes. As has now become usual, the AU Assembly, at this latest summit, also adopted decisions on the International Criminal Court and on the Abuse of the Principle of Universal Jurisdiction. Both of these decisions contain new developments from previous decisions which are analysed below. There is a call for African States to conclude bilateral immunity agreements and the AU has adopted a Model Law on Universal Jurisdiction.

The Impact of the ICC on the Venue of the Summit

The question of where the AU summit would be held was dominated by the fallout of the strained relationship between the AU and the International Criminal Court. The venue of the Summit was changed from Malawi to Addis Ababa, the seat of the AU, just one month before the meeting as the AU refused Malawi’s request for Sudanese President Omar Al Bashir not to be invited to the meeting. Malawi, a party to the Statute of the International Criminal Court, stated that it had an obligation to arrest Bashir, who is wanted by the ICC, were he to visit Malawi. Read the rest of this entry…

Filed under: EJIL Analysis, International Criminal Court, The African Union, Universal Jurisdiction
 

A case of negative regional complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes

Published on August 27, 2012        Author: 

Max du Plessis, Visiting Fellow at the Oxford Institute for Ethics, Law and Armed Conflict.  He is an Associate Professor, University of KwaZulu-Natal, Durban; Senior Research Associate, International Crime in Africa Programme, Institute for Security Studies; and a Barrister, South Africa.

At their latest African Union (AU) Assembly meeting, held in July, African Heads of State were asked to adopt a draft amended protocol on the Statute of the African Court of Justice and Human Rights (hereafter ‘African Court’) which would have expanded the jurisdiction of the African Court to include the competence to prosecute individuals for international crimes. The draft protocol would have created an International Criminal Law Section of the African Court with criminal jurisdiction over the international crimes of genocide, war crimes and crimes against humanity, as well as several transnational crimes such as, terrorism, piracy, and corruption.

Thankfully, the Heads of States decided not to adopt the amended protocol at that meeting and to postpone consideration of this proposal. Of course, we should all applaud if the AU were in due course to unveil a comprehensively funded, strongly resourced, legally sound, and politically backed African court that fearlessly pursues justice for those afflicted by the continent’s warlords and dictators, at the same time as fulfilling effectively its parallel human rights roles. However, given (i) the process by which the draft protocol had been put together thus far, and (ii) the contents of the draft protocol, the creation of an effective court had seemed unlikely. More time was needed to consider various aspects of the proposals and one can only hope that the time that has been afforded by the postponement of consideration of the protocol will be used wisely. This post deals with the flawed process that had been adopted as well as some concerns regarding the content of the draft amended protocol. I expand on these issues in a recent paper for the Institute for Security Studies.

Read the rest of this entry…

Filed under: African Court of Justice, EJIL Analysis, Human Rights, International Criminal Law
 
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Second Latin American Society of International Law Conference

Published on August 25, 2012        Author: 

Congratulations to the organizers of the second conference of the Latin American Society of International Law (LASIL-SLADI), here in Rio de Janeiro. This was the second conference for this relatively new regional international law society, with the first conference having been held in Mexico in 2010.

Organized alongside the 10th Brazilian conference on international law, the LASIL-SLADI meeting successfully brought together representatives from regional societies from five continents. The conference began with a unique opening panel, hearing perspectives from the African Foundation for International Law, the Asian Society of International Law, and the European Society of International Law, as well as two national societies for the United States and Canada to ensure that the Western Hemisphere was fully represented. (I’m here representing the Canadian Council on International Law and the Canadian perspective.)

Whether there is a regional approach to international law, or what that means in terms of content, is one of the questions underlying the discussions here, with regionalism having some paradoxical connotations when juxtaposed against national societies that have become global in their interests (and with respect to at least one or two national societies, global in their memberships). As Her Excellency Judge Xue of the International Court of Justice remarked in her insightful presentation for the Asian Society of International Law perspective, what does regionalism mean to international law and should there be a different approach? There is also the question of why is there growth in the establishment of regional international law societies when we also discuss global approaches to shared problems and concerns? Of course, practical considerations such as costs through regional collaboration, and the desire to provide a forum for intellectual exchange, also feature in these discussions.

Read the rest of this entry…

Filed under: Conference, EJIL Reports
 
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So, you want to do a PhD in international law?

Published on August 22, 2012        Author: 

I’ve become frustrated recently at the lack of practical information for those contemplating PhD level study, especially in my own field. Information about the practical pitfalls, perils and joys of further study. So I decided to write a series of blog posts on the topic, pointing to relevant resources. (This is aimed at graduate students in the English speaking Commonwealth: Europe, the US and elsewhere I can’t necessarily vouch for.)

This will be a longish post, and you probably think: ‘Ah, this will be about writing a killer application to my preferred school!’ Yes, that will be covered briefly. But first, grab a seat, we need to share a few home truths – and ask some hard questions.

What’s my motivation?

If you do want to do a PhD in international law the first question to ask yourself is: ‘Why?’

Read the rest of this entry…

Filed under: EJIL Analysis, Study of International Law
 

Wilmshurst (ed): International Law and the Classification of Conflicts

Published on August 20, 2012        Author: 

I am delighted to report that Oxford University Press have recently published International Law and the Classification of Conflicts which is edited by Elizabeth Wilmshurst and which I contributed a chapter to.

This book comprises contributions by leading experts in the field of international humanitarian law on the subject of the categorisation or classification of armed conflict. It is divided into two sections: the first aims to provide the reader with a sound understanding of the legal questions surrounding the classification of hostilities and its consequences; the second includes ten case studies that examine practice in respect of classification.

Understanding how classification operates in theory and practice is a precursor to identifying the relevant rules that govern parties to hostilities. With changing forms of armed conflict which may involve multi-national operations, transnational armed groups and organized criminal gangs, the need for clarity of the law is all-important. The case studies selected for analysis are Northern Ireland, DRC, Colombia, Afghanistan (from 2001), Gaza, South Ossetia, Iraq (from 2003), Lebanon (2006), the so-called war against Al-Qaeda, and future trends. The studies explore the legal consequences of classification particularly in respect of the use of force, detention in armed conflict, and the relationship between human rights law and international humanitarian law. The practice identified in the case studies allows the final chapter to draw conclusions as to the state of the law on classification.

My own chapter, “Classification of Armed Conflicts: Relevant Legal Concepts“, provides an overview of how and why international law classifies situations of violence for the purpose of application of international humanitarian law. The chapter examines the distinction between international and non-international armed conflicts as well as the distinction between armed conflicts and situations of violence that do not qualify as armed conflicts. The chapter examines the history of the distinction between the two categories of armed conflict, the consequences of the distinction and whether the distinction still has validity. The chapter discusses the meaning of the concepts of ‘international armed conflict’ and ‘non-international armed conflict’, including the legal standards by which such qualifications are to be made. Particular attention is paid to foreign intervention in non-international armed conflicts, extraterritorial hostilities by one State against a non-state armed group and conflicts in which multinational forces are engaged. I quoted extensively from that chapter in one of my previous posts on extraterritorial conflicts with non-State groups.

Unlike many edited books where authors write in isolation with little interaction among them, the process of writing this book involved genuine and repeated exchange of ideas. Read the rest of this entry…

Filed under: EJIL Reports, International Humanitarian Law
 

The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

Published on August 17, 2012        Author: 

Ecuador has announced that it is granting asylum to Julian Assange, the Wikileaks founder, who has taken refuge in the Ecuardor’s embassy in London. Assange sought refuge in the Embassy after the UK Supreme Court ruled a few weeks ago that he may be extradited to Sweden where he is wanted for trial on allegation of committing sexual offences. In this dispute there are some points in the UK’s favour. It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law. That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)). Furthermore, as Matthew Happold pointed out in a previous post, general international law does not provide for diplomatic asylum. Thus, States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case).

However, the UK also faces a number of legal difficulties. The main challenge it faces is that international law (in the form of Art. 22 of the Vienna Convention on Diplomatic Relations) provides that the premises of a diplomatic mission are inviolable and agents of a State may not enter them to perform law enforcement (or other) functions without the consent of the head of the diplomatic mission. So UK agents may not enter into the Ecuadorian Embassy to arrest Assange. The question raised is whether this inviolability is absolute and whether there are any ways in which the UK could get hold of Assange, without violating international law. In particular, may the UK unilaterally terminate the diplomatic status of Ecuador’s embassy by withdrawing its consent for that building to be regarded as diplomatic premises? If the UK did withdraw that consent, would the building then cease to be inviolable such that UK agents could go in to it?

Read the rest of this entry…

Filed under: Diplomatic Asylum, Diplomatic Immunity, EJIL Analysis, Extradition, International Law and Domestic Law
 

Breaking: Ecuador Grants Asylum to Julian Assange

Published on August 16, 2012        Author: 

BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.

Filed under: Diplomatic Immunity, EJIL Reports, Extradition
 
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Enter at Your Own Risk

Published on August 16, 2012        Author: 

Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:

You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.

We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.

We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.

The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:

[I]f—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.

The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.

Read the rest of this entry…

Filed under: Diplomatic Immunity, EJIL Analysis, Extradition
 

Swiss Court Finds No Immunity for the Former Algerian Minister of Defence Accused of War Crimes: Another Brick in the Wall of the Fight Against Impunity

Published on August 15, 2012        Author: 

Gabriella Citroni is Senior Researcher in International Law and Lecturer in International Human Rights Law at the University of Milano-Bicocca. Although she is Senior Legal Adviser for TRIAL, a Switzerland based NGO that filed the criminal complaint in the case discussed below, she has not been involved in this case.

On 25 July 2012 the Swiss Federal Criminal Court issued a decision (which is available, in French, here) whereby it denied the existence of immunity ratione materiae for a former Algerian Minister of Defence accused of war crimes. This decision revives the ongoing debate on the sensitive issue of immunity of State officials from foreign criminal jurisdiction and opens up for new perspectives for the application of the principle of universal jurisdiction. It also deals with other relevant matters related to the struggle against impunity.

On 19 October 2011, TRIAL, a non-governmental organization active in the field of human rights headquartered in Switzerland filed a criminal complaint against Mr. Khaled Nezzar, accusing him of war crimes committed during the Algerian civil war (1992-2000). On 19 and 20 October 2011, two individuals of Algerian origin enjoying the status of refugees in Switzerland (one of whom acquired Swiss nationality), also filed criminal complaints against Mr. Nezzar, alleging that they were subjected to torture in 1993.

Mr. Khaled Nezzar, a former general, was Chief of the Algerian Army in 1988, later promoted to Chief of Staff and subsequently appointed as Minister of Defence. During the same period he also was a member of the “High Council of State” (Haut Comité d’Etat, hereinafter “HCE”), which was a collegial body established on 14 January 1992 to replace the President. The HCE functioned until January 1994 and during this period it was entrusted with “all the powers attributed by the Constitution to the President of the Republic”.

When the criminal complaints were filed, Mr. Nezzar was staying in a hotel in Switzland while in transit through that country. Read the rest of this entry…

Filed under: EJIL Analysis, International Criminal Law, State Immunity