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A Really, Really Foggy Report

Published on April 15, 2015        Author: 

Eirik Bjorge has written an excellent critique of the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, by Richard Ekins, Jonathan Morgan, and Tom Tugendhat. I now write only to add a few additional (and apologetically undiplomatic) comments which I think the report warrants. I do so not because it may be substantively wrong in its conclusions and prescriptions, although some of these may be subject to reasonable disagreement. In fact, when it comes to one of the report’s main recommendations, that the UK (and other states parties) should derogate from the ECHR in (extraterritorial) situations of armed conflict, I at least am on the record as arguing that extraterritorial derogations are both permissible and that they can be a good idea.

My problem with the report is hence not with (some of) its conclusions, but with the quality of its analysis, leading to the misdiagnosis of the chief ailment that it identifies – allegedly extravagant judicial overreach. I have to say, regretfully, that the report’s analysis is crude and unsophisticated. It is in fact so crude and unsophisticated that it does a disservice to the overarching position it advances. The report is moreover manifestly clouded by the politics of its authors. Not that there is anything necessarily wrong, mind you, with the report of a right-of-centre (or left-of-centre, or whatever) think-tank demonstrating a distinct political bent. The problem here is rather that the authors allow their political predilections to solidify into a type of confirmation bias that all too easily leads to errors in judgment, argument, and method. Let me explain how and why.

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The Viability of Corruption Defenses in Investment Arbitration When the State Does Not Prosecute

Published on April 15, 2015        Author: 

Corruption has become a focal point in international investment arbitration, as investors and respondent States both have alleged corruption as the basis for claims and defenses in a number of recent investment arbitrations. Decisions in cases such as World Duty Free v. Kenya and Metal-Tech v. Uzbekistan confirm that corruption is contrary to international public policy and the laws of nearly all nations. Accordingly, if an investment tribunal finds that the investor obtained its investment through corruption, the tribunal will conclude that it lacks jurisdiction over the dispute or that the investor’s claims are inadmissible.

Certain commentators have suggested, however, that respondent States should be required to prosecute the allegedly corrupt parties in order to raise defenses based on corruption. A threshold question thus is whether a State should be deemed to have acquiesced in the alleged corruption and thus be estopped from asserting any related defenses, if it failed to prosecute the allegedly responsible individuals.

As early as 2000, the tribunal in Wena Hotels v. Egypt remarked that it was “reluctant to immunize Egypt from liability in this arbitration,” because the government of Egypt had been aware of the consulting agreement that allegedly was used to conceal corrupt payments, and had “decided (for whatever reasons) not to prosecute” the consultant (para. 116). More recently, in the set-aside proceeding of Congo v. Commisimpex, the Paris Court of Appeal held that Congo’s mere allegations of a general climate of corruption within the government administration, without indicating the persons likely to be involved in the corruption or prosecuting the alleged beneficiaries of the corruption, were an insufficient basis to set aside the award against Congo. Notwithstanding the comments in these decisions regarding the State’s failure to prosecute, the State’s failure to prosecute was not dispositive in either case, because neither the Wena tribunal nor the Paris Court of Appeal was presented with persuasive evidence of corruption. As the Wena tribunal explained, Egypt bore “the burden of proving such an affirmative defense” of corruption, and had “failed to present any evidence that would refute Wena’s evidence that the [consulting agreement] was a legitimate agreement. . . .” (para. 117). Read the rest of this entry…

 
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The Fogmachine of War: A Comment on the Report “Clearing the Fog of Law”

Published on April 13, 2015        Author: 

In the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Richard Ekins, Jonathan Morgan, and Tom Tugendhat criticize the European Court of Human Rights at Strasbourg for not disapplying the rights of the European Convention on Human Rights (ECHR) in cases where British troops act abroad. Together the authors have written a report which impresses with its eloquence and conviction, but ultimately leaves something to be desired in terms of how it treats the sources and the method of international law.

The authors focus their attention on what they refer to as ‘a new form of judicial imperialism’(p 7), ‘the cavalier expansion’ of the ECHR (p 46), a development which, in their view, has at least two problematic aspects. First, the provisions of the ECHR, a convention which in their view was meant to be applicable only in time of peace, have been allowed to apply in war. Second, not only has the ECHR, in their view, illegitimately been allowed to apply; it ‘is supplanting and undermining the older and far more suitable body of International Humanitarian Law’ (p 9), for this purpose the four Geneva Conventions.

According to the report, the Strasbourg Court is wrong to have applied the ECHR to the actions of British troops acting abroad, and the Strasbourg Court is wrong to have let the ECHR supplant the rules of international humanitarian law. Such developments, the authors say, are not ‘properly supported by sound legal method’ but rather ‘an instance of over-bearing judicial power’ (p 9), the report arguing in essence that the courts have discarded what the authors term the traditional interpretation of the ECHR which could be summed up as ‘the general understanding that the ECHR did not apply extraterritorially’ (p 11& 46).

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Announcements: CfA, UN Special Rapporteur on Privacy; ICL/IHL/Human Rights Summer Session (Salzburg); Course on Conduct of Peace Support Operations (Sanremo)

Published on April 11, 2015        Author: 
1.  Call for Applicants for UN Special Rapporteur on the Right to Privacy. At the 29th session of the UN Human Rights Council, 15 June – 3 July 2015, the President of the Council will appoint the Special Rapporteur on the right to privacy, the new special procedure created by the Council in March. The deadline for receipt of nominations by OHCHR is 30 April 2015. All applicants must submit an application for the mandate through the OHCHR online application system available here. Privacy International, together with Access, the American Civil Liberties Union, Amnesty International, Article 19, the Association for Progressive Communications, Electronic Frontier Foundation, and the International Commission of Jurists, have developed an outline of qualifications that we believe are relevant to the selection and appointment of the Special Rapporteur on the right to privacy. The checklist is aimed to support governments, NGOs, academics, relevant professional networks, national human rights institutions and others in the identification of and outreach to highly qualified and independent candidates.

2.  Seventeenth Summer Session of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS)welcomes applications for its Seventeenth Summer Session, Sunday 2 to Wednesday 12 August 2015. SLS is an intensive summer course founded by Prof. Otto Triffterer at the University of Salzburg in 1999. It is targeted at advanced law students, young scholars, and professionals with experience in international criminal law who wish to deepen their knowledge and engage in academic discourse. Under the title ‘Strategies to Narrow the Impunity Gap: Improving the Effectiveness of International Criminal Law and Exploring Alternative Forms of Accountability’, this year’s session will critically assess the notion of an ‘international criminal justice system’ and will glimpse beyond the framework of criminal justice for inclusive strategies to fight impunity. SLS 2015 faculty includes Prof. Olympia Bekou (University of Nottingham), Mr. Gilbert Bitti (ICC), Ms. Eleni Chaitidou (ICC), Prof. Roger Clark (Rutgers University), Dr. David Donat Cattin (PGA/New York University), Prof. Benjamin Ferencz (Einsatzgruppen trial), Prof. Don Ferencz (Global Institute for the Prevention of Aggression/Middlesex University), Mr. Orchlon Narantsetseg (ICC), Dr. Rod Rastan (ICC), Prof. Darryl Robinson (Queen’s University), Prof. William A. Schabas (Middlesex University/Leiden University), Mr. David Tolbert (ICTJ), Mr. Thomas Unger (Geneva Academy), Dr. Astrid Reisinger Coracini (University of Salzburg). Detailed information on the academic programme and the application procedure is available here.

3.  Course on Conduct of Peace Support Operations, 15 June-19 July 2015 Sanremo, Italy. Registration is now open for the International Institute of Humanitarian Law’s specialized course on the Conduct of Peace Support Operations (PSO). The aim of this course is to prepare potential civilian and military staff and augmentees for PSOs by providing an understanding of the legal issues affecting their deployment and mission accomplishment. Participants will examine and discuss the wide ranging legal issues underpinning PSO mandates affecting mission design, and those legal aspects which will shape and govern the deployed force and mission. Seminar topics include the legal bases for PSO, the applicability of human rights and LOAC, criminal responsibility and the legal implications of detention, cyber activities, and emerging technologies on PSO.  For more information see here.
 
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New EJIL:Live!: Interview with Jan Klabbers on International Organizations

Published on April 8, 2015        Author: 

A new episode of EJIL:Live! is now available online. Episode 5 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler and Professor Jan Klabbers of the University of Helsinki, whose article “The Transformation of International Organizations Law”, appears in Volume 26, Issue 1. The article, the first in a new series called The EJIL Foreword, magisterially analyses the current state of international organizations. The interview provides background to the article and probes the issues raised by it in further depth.

 
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The Mauritius Convention on Transparency: A Model for Investment Law Reform?

Published on April 8, 2015        Author: 

In the midst of heated debates on investor-State dispute settlement in Europe, on 10 December 2014 the United Nations General Assembly adopted the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration. Prepared by UNCITRAL in the context of its recent revision of the UNCITRAL Arbitration Rules, the Convention, also known as the ‘Mauritius Convention on Transparency’, was opened for signature on 17 March 2015 in Port Louis, Mauritius. Canada, Finland, France, Germany, Mauritius, Sweden, the United Kingdom and the United States signed the Convention at this occasion (see UN Press Release). In my Editorial in the latest issue of the Journal of World Investment and Trade (which this blog reproduces), I interpret this Convention as a piece of constitutional reform of the international investment regime and ask to which extent it can serve as a model for international investment law reform more generally.

A Piece of Constitutional Reform of the International Investment Regime

The Mauritius Convention will extend the application of the UNCITRAL Rules on Transparency, which so far have a very limited scope of application (only to UNCITRAL investor-State arbitrations that are based on treaties concluded on or after 1 April 2014), potentially to the entire treaty-based international investment regime as it stood on 1 April 2014. Notably, it would make the UNCITRAL Transparency Rules applicable to all treaty-based investor-State arbitrations under ‘old’ treaties, independently of the applicable arbitration rules. Whether the arbitration in question is governed by the UNCITRAL Arbitration Rules, the ICSID Convention, the Arbitration Rules of the International Chamber of Commerce, the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce – you name it – the Mauritius Convention would provide for transparency of submissions to arbitral tribunals, arbitration hearings, and decisions by arbitral tribunals, and give more room for third-party participation under a uniform set of rules. It could thus apply to some 3000+ investment treaty relations if both the respondent State and the investor’s home State are contracting parties or, alternatively, if the investor-claimant accepts the unilateral offer to apply the UNCITRAL Transparency Rules made by the respondent in signing the Convention (see Article 2 of the Mauritius Convention).

Provided it is signed and ratified by a sufficiently large number of States and regional economic integration organizations, such as the EU or ASEAN, the Mauritius Convention will bring about a paradigm shift in investor-State dispute settlement. Although possibilities for reservations, including subsequent ones, are broad (Articles 3 and 4 of the Mauritius Convention), and although ongoing arbitrations are excluded from its scope of application (Article 5 of the Mauritius Convention), the Convention will establish transparency as a general principle of international investment law.

This constitutes another step in the incremental adaptation of international investment law to the demands of a more democratic and accountable international public law system of private-public adjudication. The wide-spread application of transparency under the Convention would not only enhance the accountability of the underlying investor-State relations, but also enable better public control of the arbitral process. This turns the Mauritius Convention into an instrument with constitutional implications for the international investment regime. Read the rest of this entry…

 
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Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures of Reparation

Published on April 7, 2015        Author: 

On 3 March 2015, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered its judgment on the principles and procedures of reparation. The decision is of systemic significance for international criminal justice, since it establishes a liability regime for reparations that is grounded in the principle of accountability of the convicted person towards victims. This new “principle of liability to remedy harm’ complements the punitive dimensions of ICC justice (e.g. conviction, sentence). It differs from purely civil forms of liability due to its connection to criminal proceedings which requires reconciliation of both, the rights of victims and the rights of the convicted person. This contribution analyzes the merits and risks of the judgment It argues that the decision marks significant progress over the initial Trial Chamber decision (TC), since it increases the expressivist dimensions of reparation proceedings and the prospects of participatory justice. But it also highlights existing tensions in the decision, such as its limited attention to societal frictions created through reparations, and its minimalist approach to non-accountability related objectives of reparation.

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Announcements: ICC Moot Competition (Leiden); Conference on Int’l Law and Domestic Policy (Ankara); Venice Academy on Human Rights; Geneva Summer School in Int’l Law; Workshop on Legal Positivism (Oxford); Int’l Law Weekend CfP New Deadline

Published on April 4, 2015        Author: 

1. The Grotius Centre for International Legal Studies – Leiden University is delighted to inform you that it will be the host of the ICC Moot Court Competition 2015. The Competition is set to take place from 17 until 22 May 2015 in The Hague, the Netherlands and is organized with the support of the International Criminal Court (ICC). This year we will welcome 57 university teams (appr. 350+ students) from 38 different countries worldwide. A large number of the participating universities are from Non-Member States. The sheer volume of interest and diversity of support represents a growing commitment to international law and the ICC worldwide; our competition thus serves as a simple yet powerful instrument to cultivate this strong, youth-led interest and helps further cement the ICC’s future place in global affairs. If you are interested in attending the Competition as a Bench Member, and/or being involved by evaluating memorials, please contact us at grotiuscentre {at} cdh.leidenuniv(.)nl, and we will send you an official invitation including all relevant information. More information can also be found on our website.

2.  Turgut Ozal University School of Law, in cooperation with Association for Canadian Studies and IDI, invites scholars and policy-makers to submit paper proposals to International Conference on International Law and Domestic Policies to take place on 30-31 October 2015 in Ankara, Turkey. The aim of this International Conference is to evaluate the impact of international law and transnational law on the legal orders and domestic policies of nation states in different national contexts. The importance of international law in an increasingly globalized world is duly and frequently acknowledged. However, it is difficult to say that international law produces the desired impact across different national legal orders. In this context, the aim of the Conference is to provide opportunities to discuss the interplay between international law and domestic policies. Besides focusing on the impact of international treaty and customary law, the Conference also welcomes submissions dealing with the effects on domestic policies of other sources of globalized norms, such as the emergence of global common law arising from pressures for regulatory commonality, different trade and investment regimes, international sanctions and others. For more information, including information on deadline for proposals and accommodation opportunities, please refer to the website of the conference.

3.  The Venice Academy of Human Rights, from 6 to 15 July, is an international and interdisciplinary programme of excellence for human rights education, research and debate. The mission of the Venice Academy is to provide an enriching transdisciplinary forum for emerging ideas, practices and policy options in human rights research, education and training. The Academy hosts distinguished experts to participate in critical and useful research, innovation and exchange of current knowledge such as the Canada Research Chair in Political Philosophy in the Philosophy Department at Queen’s University or Albie Sachs, activist and former judge on the Constitutional Court of South Africa under appointment by Nelson Mandela. The Venice Academy of Human Rights 2015 will look at international, regional and transnational integration processes from an institutional, policy, dogmatic and interdisciplinary perspective. The discussion addresses communities of various actors, including citizens, peoples, minorities, but also communities of international and regional organisations, courts and private bodies. More information is available here. Read the rest of this entry…

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Brexit: No Happy Endings

Published on April 1, 2015        Author: 

I can think of no ‘happy ending’ scenario to this unfolding saga: like malaria, it is a malaise that has nested since British accession back in 1973, and erupts from time to time, though the current eruption is potentially of fatal proportions.

One cannot overstate the damage that a full-fledged exit of Britain will inflict on the EU. The importance goes well beyond the specificities of the functioning of the Union. It will survive and continue to function, even perhaps in some respects with less engine-room screeching. But as a global presence in the world, shaping and reshaping the impact will be huge, and to the detriment of the UK, the Union and the world. And internally, though not much might change on the surface, it will at the deepest spiritual level of European integration – and make no mistake, at its core the European construct has always been more than a functional, utilitarian enterprise – the damage will be equally shattering.

There are many in Britain who are sceptical about the benefits of British membership. But if Brexit results from a referendum vote, it is quite likely that it will be an English exit majority, with the opposite outcome in Scotland – almost inevitably leading to a Scottish exit from the UK, a catastrophic result by all accounts for the UK.

This MAD-like scenario assures at least one thing – that there will be no facile poker-playing in any future negotiations, the stakes are simply too high.

Allowing Scotland a referendum on its status within the UK was, in my eyes, the best of the British mature democratic tradition. Many express doubts whether the decision (for what it is) to allow a referendum for continued EU membership would justify such accolades. It was, according to some, holding the country hostage to the internal politics of the Tories. I don’t share this view. The fact that the EU issue has remained for so long – forever – a potent part of UK politics, together with the recent impressive successes of UKIP, means, in my opinion, that at some point the people should be able to express themselves, on such a critical ontological issue, directly. Be that as it may, a referendum was promised and to withdraw it at this point would undermine even further the fortunes of the Union in the UK and would be grist to the mill of the most populist of voices. Read the rest of this entry…

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New Issue of EJIL (Vol. 26: No. 1) Published

Published on April 1, 2015        Author: 

The latest issue of the European Journal of International Law (Vol. 26 No. 1) is out today. This issue has two free access articles, Jan Klabbers’s “The EJIL Foreword: The Transformation of International Organizations Law” and Janina Dill’s “The 21st-Century Belligerent’s Trilemma.” As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can also access those articles that are freely available without subscription. Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

 
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