1. University of Southern Denmark Vacancy for Assistant Professor in Public International Law. The Department of Law at the University of Southern Denmark in Odense is currently advertising a post as Assistant Professor in International Law with starting date 1 January 2017 or soon thereafter. The successful applicant will have a strong profile in both research and teaching and also be interested to work in a multidisciplinary environment. This will include contributions to the University’s Centre for War Studies and the interdisciplinary master degree in “International Security and Law”. The candidate is expected to be able to teach in English and Danish within three years from the start of employment. For more information and the application form see the official job advert. Applications are accepted until 21 August 2016.
Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related Money Laundering by Foreign Officials?
On 14 June 2016, the International Court of Justice (ICJ) announced that Equatorial Guinea had instituted proceedings against France before the Court. Equatorial Guinea’s claims arise from the French prosecution of Teodoro Nguema Obiang Mangue, First Vice-President of Equatorial Guinea, on charges of corruption-related money laundering. This is the first time that allegations related to large-scale corruption – often dubbed as ‘kleptocracy’ or ‘grand corruption’ – engender a dispute before the ICJ. This post offers an overview of some of the legal issues that the Court may address in the course of this litigation.
Mr Obiang is First Vice-President of Equatorial Guinea and the son of the country’s president, Teodoro Obiang Nguema Mbasogo (who is, incidentally, the world’s longest-serving president, in power since 1979). At the time when the proceedings were brought, Mr Obiang was Second Vice-President in charge of defence and security, having been promoted to his current post on 22 June 2016.
The two statesmen are no strangers to controversy. Allegations of corruption have been levelled against them repeatedly (see, e.g., here and here). In 2014, Mr Obiang surrendered part of his US-based property in settlement of US v One White Crystal-Covered ‘Bad Tour’ Glove et al, an asset forfeiture case brought by the US Department of Justice that involved his collection of Michael Jackson memorabilia and real estate. A criminal investigation is reportedly underway in Spain and corruption-related human rights litigation against Equatorial Guinea is pending in the African Commission on Human and Peoples’ Rights.
The French investigation against Mr Obiang arises from a criminal complaint submitted by Transparency International France and Sherpa, two anti-corruption NGOs. Their allegation is that he has pilfered the coffers of Equatorial Guinea and invested the proceeds in France. The French authorities launched an enquiry after the Cour de Cassation’s 2010 judgment that confirmed the standing of NGOs to bring criminal complaints. On 13 July 2012, France issued an international arrest warrant against Mr Obiang. As of now, the pre-trial investigation has been concluded and the investigating magistrate shall decide whether to refer the case to court. Mr Obiang’s attempt to invoke immunity in France fell through as the Cour de Cassation ruled that (1) immunity under customary international law is limited to heads of states, heads of governments, and foreign ministers, and (2) at the time of the alleged commission of the imputed offences, Mr Obiang was merely a minister of agriculture and forests.
In another twist of events, in 2011 – that is, after the Cour de Cassation’s 2010 ruling that paved way for his prosecution – Mr Obiang sold his Parisian mansion to the state of Equatorial Guinea. Equatorial Guinea asserts that the property has henceforth formed part of the premises of its embassy to France. Unimpressed by the manoeuvre, the French investigating magistrate ordered the seizure of the building in 2012.
In Equatorial Guinea’s contention, (1) the French criminal proceedings constitute an unlawful interference with its internal affairs because alleged wrongdoing would fall within the exclusive jurisdiction of Equatorial Guinea, (2) Mr Obiang is entitled to immunity from the French criminal jurisdiction, and (3) the seizure of the building is in breach of the Vienna Convention on Diplomatic Relations 1961. Read the rest of this entry…
Philip Morris v Uruguay: an affirmation of ‘Police Powers’ and ‘Regulatory Power in the Public Interest’ in International Investment Law
In recent years there has been criticism that international investment treaties and investor-State arbitration conducted under those treaties increasingly, and unacceptably, have encroached upon the legitimate uses of States’ regulatory power. These concerns have not only been expressed in scholarship, but have also been at the forefront of State negotiations in recent multilateral and bilateral trade and investment agreements (see, for example, the recent discussion by Anthea Roberts and Richard Braddock here on the China-Australia Free Trade Agreement). The concerns have led to policy proposals from States and international organisations for greater safeguards for States to be able to enact measures in the public interest without attracting liability under investment treaties.
Investor-State arbitration tribunals appear to be alive to these concerns. On 8 July 2016, a tribunal (constituted by Professor Piero Bernardini, Mr Gary Born and Judge James Crawford) convened pursuant to the Switzerland-Uruguay Bilateral Investment Treaty (‘BIT’) delivered an award which, by majority, upheld the legality of two tobacco-control measures enacted by the Uruguayan government for the purpose of protecting public health. The award contains an extensive analysis of the interaction between States’ regulatory powers to enact laws in the public interest and States’ obligations to protect and promote foreign investment within their territory. This post will focus on two aspects of the award that considered this interaction: the claim pursuant to Article 5 of the BIT (expropriation) and the claim pursuant to Article 3(2) (fair and equitable treatment or FET).
The challenged measures
The claim, brought by the Philip Morris group of tobacco companies against Uruguay, challenged two legislative measures. First, the claimants challenged a law that mandated a ‘single presentation requirement’ on cigarette packaging, such that different packaging or variants of cigarettes were prohibited.
Secondly, the claimants challenged a law that mandated an increase in the size of health warnings on cigarette packaging from 50 to 80% of the lower part of each of the main sides of a cigarette package (‘the 80/80 requirement’). As the the amicus brief submitted by the WHO and Framework Convention on Tobacco Control (‘FCTC’) Secretariat noted, large graphic and text health warnings are increasingly common on tobacco packaging globally and a number of States have enacted (or are considering enacting) laws with the aim of preventing misleading tobacco packaging, as is required of States parties to the FCTC (including Uruguay). Read the rest of this entry…
In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR). So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).
Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.
Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.
Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Read the rest of this entry…
The latest issue of the European Journal of International Law (Vol. 27, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Karen Alter, James Gathii and Laurence Helfer’s Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We will be hosting a discussion of their article next week. EJIL 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.
This issue opens with a pair of articles that address questions of normative coherence and contestation in two central areas of international law. In the first article, Monica Hakimi and Jacob Katz Cogan address the presence of a puzzling incoherence in the legal regime relating to the use of force. Their article theorizes that this incoherence derives from the combination within the regime of two distinct ‘codes’, thus offering a useful framework for thinking through interpretive debates in the field. In our second article, Karen Alter, James Gathii and Laurence Helfer offer an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent. Their article usefully highlights the work of courts that may remain unfamiliar to many of our readers, while casting new light on a range of theoretical debates relating to international courts. Our EJIL: Live! interview with Karen Alter deepens the discussion.
The next three articles likewise address important questions of normative authority in international law. Nicole Roughan argues that international law’s claims to authority should be understood as claims to relative authority, dependent upon the relationships and interactions with other institutions. Elisa Morgera offers some conceptual clarity in the little-investigated notion of fair and equitable benefit-sharing, identifying shared normative elements from different regimes to help develop a common core to this concept. Finally, David McGrogan provides an incisive analytical framework for understanding both the growth of the culture of human rights indicators and its unintended consequences, showcasing the competing priorities of certainty and uniformity on the one hand, and experiential and conversational approaches on the other.
Our occasional series on The European Tradition in International Law returns in this issue, featuring a remarkably rich and varied collection dedicated to the controversial 19th-century Scottish jurist, James Lorimer. The collection opens with a short overview by Stephen Tierney and Neil Walker, highlighting the tension between Lorimer’s remarkable foresight in relation to a number of developments in international law, cast against his deeply embedded racial prejudice. This darker side of Lorimer’s legal science is examined further by Martti Koskenniemi, whose article considers the importance of racial hierarchies that underpinned Lorimer’s conception of statehood. Gerry Simpson traces the legacies of these attitudes in international law, including the extension of Lorimer’s hierarchies in legally codified power. Karen Knop likewise explores the continuing resonances of Lorimer’s thought in the present day, focusing in particular on his notion of ‘private citizens of the world’. Stephen Neff discusses Lorimer’s views on war and neutrality, highlighting the remarkable modernity of his approach in seeking a systematic global regulatory framework.
Roaming Charges in this issue features a photograph of pupils at the Jean Paul II High School, Kibera, Nairobi.
In the last article in this issue, appearing in our regular series Critical Review of International Jurisprudence, Katie Sykes explores the use of science in the emerging field of ‘global animal law’, through an analysis of two recent and important international legal decisions, the first by the Appellate Body of the World Trade Organization in the EC–Seal Products dispute, and the second by the International Court of Justice in Whaling in the Antarctic.
The Last Page in this issue, entitled ‘Reasons’, is by Liam McHugh-Russell.
ESIL members will know that, following the decision taken at the 2015 General Assembly meeting, membership of the Society now includes an online subscription to EJIL and access to the EJIL app. The app, available for both Apple and Android systems, allows you to download and read the Journal on your mobile device – anywhere and at any time.
ESIL members can access the EJIL app in just a few, simple steps:
- Shortly after joining ESIL, you will receive an OUP customer ID number
- Go to exacteditions.com/print/ejil and enter that number plus your email address and choice of password
- The site will authenticate you as a user
- Go to the appropriate App Store (Apple or Android) and download the EJIL app
- When you reach the login page enter your registered email address and password
For ESIL members who wish to receive the print edition, a special reduced price subscription is available.
One Swallow Does Not a Summer Make, but Might the Paris Agreement on Climate Change a Better Future Create?
Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:
I have invited Laurence Boisson de Chazournes, member of the EJIL Editorial Board, to write the Editorial for the latest issue of EJIL (Vol. 27 (2016) No. 2).
The Conference of the Parties in Paris in December 2015, with the subsequent adoption of the Paris Agreement on Climate Change, was a significant event, from both a political and a legal perspective. It is politically significant not least because it is the first universal agreement on climate change, involving 195 countries and the EU, to be adopted. However, the event was also legally significant for a host of reasons upon which this Editorial will touch. Overall, it represents an evolution in legal technique, especially with regard to the measures and procedures used to achieve the intended objective. Legal events like this are noteworthy in the way that they introduce innovations and provoke reflection.
The Paris Agreement is indeed an interesting legal creature. In trying to shape a better future than is foreseeable, if present consumption patterns of fossil fuels continue, the Agreement adopts a legal technique that breaks new ground. It envisages the elimination of the use of fossil fuel energy by the end of the 21st century. This would be quite an achievement, given that fossil fuel energy has shaped the economy of the 20th century in so many different ways. The Agreement is intended to come into force in 2020, and the objective it sets is to be achieved in the second part of this century, which is indeed several decades from now. It goes without saying that a great number of us will no longer be here when the goals of the Agreement are to be realized, and we are thus being asked to act for the generations to come. Interestingly, in addition to building a long-term future, the Agreement makes provision for meetings, as well as for tasks to be achieved at these meetings, in the near future. Some of these meetings will take place in 2018, 2023, 2025 and thereafter. The path to the longer-term objective is thus paved with the fulfilment of shorter-term commitments. Read the rest of this entry…
1. Transnational Dispute Management Call for Papers. Transnational Dispute Management is launching a call for papers for a special issue on “Non-Legal Adjudicators in National and International Disputes”. This special issue will analyse the current scenario, as well as new trends, developments, and challenges that non-legal adjudicators face when resolving national and international disputes. This special issue is edited by Katia Fach Gómez (University of Zaragoza-Spain) and Weiwei Zhang (Graduate Institute of International and Development Studies – Switzerland). Proposals for papers should be submitted to the editors on or before 31 October 2016, accepted papers should be submitted to the editors on or before 10 January 2017, and publication is expected in the second quarter of 2017. See here for more information.
2. City University of London Humanity at Sea Book Discussion. On Wednesday 27 July at 6pm, City University of London will be hosting a discussion of the forthcoming book Humanity at Sea: Maritime Migration and the Foundations of International Law. The panel will feature Guy Goodwin-Gill (Oxford); Hagar Kotef (SOAS); Ioannis Kalpouzos (City), the author Itamar Mann (Haifa); and will be chaired by Panos Koutrakos (City). See here for more information.
The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:
One Swallow Does Not a Summer Make, but Might the Paris Agreement on Climate Change a Better Future Create?; EJIL on Your Tablet or Smartphone; In this Issue
Monica Hakimi and Jacob Katz Cogan, The Two Codes on the Use of Force
Karen J. Alter, James T. Gathii and Laurence R. Helfer, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences
Nicole Roughan, Mind the Gaps: Authority and Legality in International Law
Elisa Morgera, The Need for an International Legal Concept of Fair and Equitable Benefit Sharing
David McGrogan, Human Rights Indicators and the Sovereignty of Technique Read the rest of this entry…