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UNCITRAL and ISDS Reforms: Battles over Naming and Framing

Published on April 30, 2019        Author:  and

Editor’s Note:  This week, we will be featuring several posts critically examining the UNCITRAL ISDS reform process, which held its latest Working Group III meetings in New York on April 2019.  Yesterday’s introduction from our Contributing Editor Anthea Roberts and UNCITRAL Academic Forum Chair Malcolm Langford summarized key points of contention raised by States as to the narrower procedural reforms to ISDS as the mandate of UNCITRAL Working Group III.  The next series of posts this week focus on broader issues and substantive questions that suffuse the reform process. In this morning’s post and this post, Contributing Editor Anthea Roberts and her co-author Taylor St. John address geopolitical and ideological issues that affect ISDS reforms. Anthea Roberts attends UNCITRAL Working Group III as part of the Australian delegation but she acts and writes in her independent academic capacity. Taylor St John attends UNCITRAL as an observer from PluriCourts, University of Oslo.

A striking feature of the debates over ISDS reform in the last UNCITRAL session were the battles over naming and framing. In some ways, these battles reflect the power that names and frames have in shaping our understanding of reality, guiding and limiting debates, and making some approaches or positions seem more obvious or appealing than others. In another way, these debates often represented proxy battles for deeper, substantive divisions among various states of the type we addressed in our previous blog on the Divided West and the Battle for and by the Rest.

What is in a name? Does framing matter?

When we imagine negotiations between governments, we often picture hard bargaining over bracketed text. In reality, the early stages of negotiation are often more about framing, particularly when negotiations deal with new issues or evolving processes. Framing plays a crucial role in creating the conceptual categories through which participants understand dynamics and formulate or communicate their positions. Every frame simultaneously reveals and obscures, both providing insights and limiting vision.

Naming is important because the names attached to positions can be relatively neutral or can be designed to make some positions seem more attractive or inevitable than others. Actors can attempt to use names dispassionately to describe situations or as advocacy tools to support particular positions. Sometimes it is not clear which is being done. Sometimes different actors can be using the same names in different ways.

Names and frames are often in flux during negotiations. Particularly in a consensus driven negotiation, we should expect naming and framing to shift over time in order to forge consensus among disparate groups. Heated debates in the UNCITRAL ISDS reform process over the use of the names “incremental” and “systemic” provide a good illustration of these phenomena.

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UNCITRAL and ISDS Reforms: The Divided West and the Battle by and for the Rest

Published on April 30, 2019        Author:  and

Editor’s Note:  This week, we will be featuring several posts critically examining the UNCITRAL ISDS reform process, which held its latest Working Group III meetings in New York on April 2019.  Yesterday’s introduction from our Contributing Editor Anthea Roberts and UNCITRAL Academic Forum Chair Malcolm Langford summarized key points of contention raised by States as to the narrower procedural reforms to ISDS as the mandate of UNCITRAL Working Group III.  The next series of posts this week focus on broader issues and substantive questions that suffuse the reform process. Today, Contributing Editor Anthea Roberts and her co-author Taylor St. John address geopolitical issues that inevitably affect ISDS reforms. Anthea Roberts attends UNCITRAL Working Group III as part of the Australian delegation but she acts and writes in her independent academic capacity. Taylor St John attends UNCITRAL as an observer from PluriCourts, University of Oslo.

The UNCITRAL debates over ISDS reforms can serve as a real-world laboratory for observing changes in the national interests and policies of different countries, as well as shifts in their geopolitical weight and alignments. As part of a commitment to transparency, UNCITRAL decided to allow a wide range of observers in the room and to make recordings of the debates available. Such transparency gives non-state actors a chance to analyse these dynamics in real time and to consider not only what they mean for ISDS reforms but how they reflect and reinforce broader shifts in international economic governance. During the latest Working Group III meeting in April in New York, we observed a divided West and an emerging battle by and for the Rest.

The Divided West

The ISDS reform debates reached UNCITRAL despite a division within ‘the West.’ For multiple reasons, most notably that ad hoc investor-state arbitration had become politically toxic within Europe as a form of ‘private justice,’ the European Union proposed the creation of a multilateral investment court. Although initially reluctant to bring these issues to UNCITRAL, the European Union and Canada ultimately supported these reform debates going forward within a multilateral UN body. Other significant powers, including the United States and Japan, were opposed to both the creation of a court and these reform debates going forward in UNCITRAL. Read the rest of this entry…

 

UNCITRAL and ISDS Reforms: Hastening slowly

Published on April 29, 2019        Author:  and

Editor’s Note:  This week, we will be featuring several posts critically examining the UNCITRAL ISDS reform process, which held its latest Working Group III meetings in New York on April 2019.  We begin with today’s introduction from Anthea Roberts and Malcolm Langford.  Malcolm Langford attends UNCITRAL Working Group III as Chair of the ISDS Academic Forum and a representative of Pluricourts, University of Oslo. He writes here in his independent academic capacity.Anthea Roberts attends UNCITRAL Working Group III as part of the Australian delegation but she acts and writes in her independent academic capacity. 

UNCITRAL’s Working Group III on investor-state dispute settlement (ISDS) reform continues to attract substantial and growing interest. In the first week of April 2019, a record number of states and observers descended on New York to clarify the final list of concerns and establish a work plan for moving forward on concrete reforms. This session continued the earlier trend of hastening slowly. A recognition of the need for reform amongst states is clear but the tempo remains modest given the reticence of some and the panoply of reform options being considered. This blog post sums up the four main takeaways of the week and will be followed by three reflective analytical posts on the West/Rest politics underlying the process, the role of academics in international politics, debates around naming and framing (“we are all systemic reformers now”) together with a concluding post. Read the rest of this entry…

 

Afghanistan and the ‘interests of justice’; an unwise exercise?

Published on April 26, 2019        Author: 

It has been more than a week now that a reference to the ‘interests of justice’ has highjacked the international criminal law blogosphere. The recent decision by the International Criminal Court’s Pre-Trial Chamber (PTC) to reject the Office of the Prosecutor (OTP)’s request for authorization to open an investigation in the Afghanistan situation, solely on the basis of interests of justice, not only has triggered ‘outcry’, but it has also united various scholars and experts from very different backgrounds. Characteristically enough, this decision has been described as problematic for the legitimacy of the Court, especially in a period in which the Court needs a credibility boosting (see Vasiliev), as legally wrong, either due to the PTC’s review without prior invocation of interests of justice by the Prosecutor (see Jacobs ) or due to its de novo review (see Heller ), and as dangerous for the entire feasibility of the project, given the message it conveys in cases of no cooperation. In simple words, there is a striking consensus that this is a very bad decision (see De Vos and Kersten).

Several legal aspects of the decision have been already addressed by a series of commentators (see Jacobs and Akande and Labuda) and in the interests of  justice for the readers, I will refrain from repeating them. I have also suggested in the past the revision of the very narrow OTP policy paper (see JICJ) and recommended the consideration of the interests of justice via the angle of a fairness based theory of prosecutorial legitimacy (see EJIL). However, for the purposes of this very short intervention I would like solely to question the judicial wisdom, or mainly the lack thereof, to utilize this controversial tool in this particular moment of time.  In other words, was the invocation by the judges of this concept for the very first time a wise exercise of their judgment or not?  

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Life Without the WTO – Part II: Looking to the Everyday

Published on April 26, 2019        Author: 

Editors’ Note: This is the second post of a two part series by EJIL:Talk Contributing Editor Michael Fakhri. Part I can be found here.

In this second post I want to provide two examples of how life might look like without the WTO. One could do this in a myriad of ways and my purpose is to encourage more thinking along these terms and not to define that debate (well, not yet at least). Let’s see what the world looks like when we highlight the everyday practices of procuring food and doing business:

If a central tenet of the WTO is trade liberalization, the Agreement of Agriculture has always been a failure no matter what your definition of liberalization is. Developing countries had, either through the coercion of IMF structural adjustment programs or unilaterally with the aid of World Bank programs, already implemented a small revolution and liberalized their agricultural sectors before 1994. By the late 1980s, they were export-oriented and did little to protect (i.e. support) domestic agricultural production. So, developing countries did not need the WTO to liberalize their agricultural markets.

Instead, the Agreement of Agriculture, took what was an exception under GATT, and turned it into the norm through things like the Green Box (defined in Annex 2 of the Agriculture Agreement). The most popular way that rich countries made exceptions within GATT for their agricultural policy was under GATT Article XII which allowed for quantitative restrictions to be temporarily employed in order to avoid a fiscal crisis caused by a serious balance of payment deficit. In 1955, this temporary exception became the permanent rule when a very generous waiver was granted to the US (BISD 3S/34-5) and a more conditional ‘Hard Core Waiver’ (BISD 3S/39) for the rest of the world but which primarily favored the then EEC. The result was that the GATT now granted countries permission to impose quantitative restrictions for trade in agriculture. The waivers became the rule and were in effect until 1994. With the WTO’s Agreement of Agriculture, the world’s largest markets continued to be closed off to developing countries. Read the rest of this entry…

 
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Life Without the WTO – Part I: Stop all this Crisis-Talk

Published on April 25, 2019        Author: 

Editors’ Note: This is the first part of two posts by EJIL:Talk! Contributing Editor Michael Fakhri.

We hear a lot today about the WTO being in crisis. Some people have focused on institutional changes are imagining life without the DSU if it is not reformed. Others are proposing that the WTO consider life without the US. I think, however, we’re at a moment when it’s worth imagining life without the WTO (or at least radically reimagining the WTO). It is actually not too difficult a task if you look at one place the WTO should not have gotten into in the first place – agriculture – and one place where people conduct cross-border business and the WTO is nowhere in sight – the informal economy. I’ll address those in my second blog post.

But first, all this new talk of a WTO crisis is overblown. The WTO was born into a crisis. In light of the Marrakesh Agreement’s 25th birthday this month, it is worth recounting some living memory surrounding the WTO. In the final years of the Uruguay round, farmers in India argued with each other in the streets and in the newspapers over whether they would benefit from a freer market. Environmentalists around the world re-energized their protest efforts having learned some lessons in trade law from the GATT Tuna-Dolphin cases. And labor unions worried about a regulatory race to the bottom. The food sovereignty movement was galvanized by the advent of the WTO and continues strong to this day. Read the rest of this entry…

 

Corporate Responsibility for Human Rights Violations: UK Supreme Court Allows Zambian Communities to Pursue Civil Suit Against UK Domiciled Parent Company

Published on April 24, 2019        Author:  and

On 10 April 2019, the UK Supreme Court held unanimously, in Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20, that Vedanta Resources, a UK company, arguably owes a duty of care to villagers living in the vicinity of its Zambian subsidiary, Konkola Copper Mines Plc (KCM). Ruling on a procedural appeal, by upholding the jurisdiction of the UK courts, this landmark judgment allows the claimants, 1826 Zambian villagers, to pursue their case against both the parent and subsidiary companies in the UK. The core legal question, whether a parent company can be held accountable under civil law for human rights violations and environmental harm caused by its foreign subsidiary, is central to the ability of many victims of corporate human rights violations worldwide to access justice. The case provides an example of how public international law principles (such as those on corporate responsibility espoused in the United Nations Guiding Principles on Business and Human Rights (UNGPs)) can be realised and achieved though domestic civil law.

Readers may be aware that three inter-related pillars underpin the UNGPs: first, the State duty to protect human rights; second, the corporate responsibility to respect human rights; and third, access to remedy. Relevantly, Guiding Principle 25, in Pillar III, reminds States to “take appropriate steps to ensure” that those affected by business-related human rights abuses within their territory and/or jurisdiction “have access to an effective remedy”. Principle 26 further identifies the need for States to ensure the effectiveness of these remedies, including by removing barriers that can lead to a denial to access to justice.

Two of the intervenors in this case (Corporate Responsibility Coalition Ltd (CORE) and the International Commission of Jurists) wrote a joint submission that sought to support the notion that Vedanta arguably owed a duty of care to the affected communities with reference to international standards and jurisprudence regarding corporate responsibility in relation to human rights and environmental protections. They pointed out that the UK Government explicitly:

stresses the importance of victims being able to secure access to justice in respect of wrongdoing by UK-based business enterprises both domestically and overseas, and indicates that such persons should have access to remedies through the judicial mechanisms of the UK itself.”

In particular, the Government publication Good Business: Implementing the UN Guiding Principles on Business and Human Rights (through which the UK advocates for the implementation of the UNGPs) notes that civil law claims are one remedial avenue in relation to human rights abuses committed overseas by corporations. The interveners further refer to a number of other international standards that aim to increase corporate accountability for human rights and environmental abuses. Robert McCorquodale, counsel representing the intervention of in the case, notes here of his disappointment that the Court did not refer to these international standards in its decision. But even without explicit reference, this case can surely be viewed as a step towards implementing the UNGPs with respect to access to justice, through its removal of obstacles for redress. The specifics of the court’s consideration of access to justice are canvassed in the sections below. Read the rest of this entry…

Filed under: Human Rights
 

The ICC and US Retaliatory Visa Measures: Can the UN Do More to Support the Privileges & Immunities of the Prosecutor?

Published on April 23, 2019        Author:  and

On 12 April 2019, the ICC Pre-Trial Chamber II decided to reject the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that an investigation would not be “in the interests of justice,” though it found that the case otherwise satisfied the requirements of jurisdiction and admissibility set forth in the Rome Statute (see recent posts here). The ruling came on the heels of the US revocation on 5 April of ICC Prosecutor Fatou Bensouda’s visa for entry to the US, and prior US threats to take action against the ICC for examining the situations in Afghanistan and Palestine.

While the Pre-Trial Chamber (PTC) made no direct mention of recent US hostility towards the ICC, it appears to have implied, and others have suggested (here, here, and here), that such pressure played a role in the decision. As the PTC noted, “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both Parties and non-Parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future […]” (para. 94).

Senior US officials were quick to claim victory and take credit for the development, ostensibly linking US pressure to the outcome. Alluding to a potential appeal of the PTC decision, as well as the Prosecutor’s preliminary examination into the situation in Palestine, President Trump menaced that US actions against the ICC could continue: “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response.”

This post considers how the United Nations can—and may be obliged to—play a bigger role in helping to protect the Prosecutor and her team from one form of this US hostility towards the Court: visa restrictions. Despite US obligations under the US-UN Headquarters Agreement to allow the transit of individuals conducting business at UN Headquarters, some ambiguity surrounds the question of when and under what conditions the US will allow the Prosecutor access to Headquarters now that her visa has been revoked. Read the rest of this entry…

 

Announcements: Sanremo New Voices in International Humanitarian Law Essay Competition; Summer School on Health and Human Rights; UN Audiovisual Library of International Law; Annual Human Rights and Mass Atrocity Seminar; CTIL Senior Research Fellows and Research Fellows Vacancy; Conference on Procedural Rules of International Courts and Tribunals

Published on April 21, 2019        Author: 

1. Sanremo New Voices in International Humanitarian Law Essay Competition. The ICRC and the Sanremo International Institute for Humanitarian Law have just launched the second ‘Sanremo New Voices in International Humanitarian Law’ essay competition. Young scholars are invited to submit short essays on one of the following topics: ‘IHL and the challenges related to cyber warfare’; ‘Artificial intelligence in warfare’. The winner will be invited to present at the 2019 Sanremo Round Table, which will discuss IHL implications of new technology in warfare. Further details and criteria for submission are available here.

2. University of Groningen Summer School on Health and Human Rights. This Summer School, organized by the Global Health Law Groningen Research Centre,  is entitled ‘Health and Human Rights: The role of law in addressing the chronic disease pandemic’ and it will be held at the University of Groningen, The Netherlands  from 8 – 12 July 2019. The summer school is open to participants with both a law and medical background from the bachelor level to practitioners. The school will be taught by a multidisciplinary group of academics and practitioners and will focus on how international law and specifically human rights law is essential to addressing the global increase in non-communicable diseases (NCDs), including cardiovascular diseases, cancers, chronic respiratory diseases, and diabetes. The course will have a specific focus on unhealthy diets and the obesity epidemic and tobacco as NCD behavioral risk factors. The deadline for applications is 1 May 2019. More information can be found here and here
 
3. New Addition to the UN Audiovisual Library of International Law. The Codification Division of the United Nations Office of Legal Affairs recently added the following lecture to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. Victor Saco on “International Trade Law and International Investment Law” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.
 
4. 2nd Annual Human Rights and Mass Atrocity Seminar. The 2nd annual Human Rights and Mass Atrocities Law Seminar is taking place at Griffith College in Dublin, Ireland from 19 – 21 June. The 3 day certificate seminar will deep dive into the following topics: wildlife crimes, child sex crimes, universal jurisdiction, starvation as a mass atrocity, post colonialism, indigenous rights and climate change, and prosecuting genocide. Sponsored by World Peace through Law Section of the WSBA and The Common Good Foundation. Registration is now open. Read the rest of this entry…
Filed under: Announcements and Events
 
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Not just another ‘crisis’: Could the blocking of the Afghanistan investigation spell the end of the ICC? (Part II)

Published on April 20, 2019        Author: 

Part II of this post addresses the larger implications of the PTC’s decision. For part I discussing its treatment of the ‘interests of justice’, see here .

Justice and pragmatism

In my previous post, I argued that, as a result of the Pre-Trial Chamber’s incorrect interpretation of the ‘interests of justice’ standard, extra-legal considerations controlled the outcome of its determination. This part shows why this is problematic in terms of the legitimacy of the Court and of the broader project it symbolizes. 

But first, is there no silver lining and nothing to defend in the PTC’s decision to deny authorization of the investigation in Afghanistan? As noted elsewhere, the ‘crises’ in international criminal justice tend to consolidate members of the epistemic and support communities around the institutions while also bringing the existing ideological and other fault lines into sharper relief. There is no uniform consensus on the PTC decision either.

Some (mostly US-based) commentators suggest that the PTC’s decision on the Afghanistan probe was overdetermined, understandable, and thus, in a way, justifiable. After all, it was a well-known fact—even prior to the unequivocal statements by John Bolton in September 2018 and Mike Pompeo in March 2019—that the US would not tolerate the prospect of the ICC Prosecutor investigating the conduct of its armed forces and CIA personnel. Most recently, the US government’s hostility towards the Court took the form of overt pressure and visa restrictions meant to dissuade the ICC staff from (and punish it for) pursuing that course of action. The judges’ blocking the investigation is not merely caving to pressure, the argument goes, but it is ‘caving to reality’: a prudent step towards de-escalation and much-needed institutional adjustment (see Bosco and Buchwald). This is what the triumph of pragmatism over the idealistic and over-reaching attempts to bring accountability for the alleged crimes in Afghanistan looks like. It is warranted by the need for the Court to better prioritize its work, focus on the more tangible goals, and direct its scarce resources to situations ‘where there exists some meaningful prospect of success’ (Whiting). This makes sense, particularly considering the Court’s poor track record in terms of securing convictions over the past years in situations seemingly less complex than that of Afghanistan.

It may well be that the Afghanistan investigation would not have led to prosecutorial success or even any cases at all. There is also no doubt that the opening of the investigation would have led to further escalation with the US and seriously complicated the situation for the Court and for its employees. It is also highly likely that the Prosecutor would continue facing serious difficulties obtaining cooperation of the relevant actors in the situation – the factor of some pertinence to the interests of justice. That said, this remains an assumption – and a questionable one at that when it comes to the investigation of the Taliban crimes.

The realist arguments are not patently misconceived or groundless (or at least, not all of them). The problem is that, even assuming arguendo that those concerns may be considered as validly falling within the ‘interests of justice’ (which they arguably may not), they are still hard to accept from a normative and legal policy angles. Importantly, as already noted in the debates, the non-authorization of the Afghanistan investigation effectively rewards non-cooperation and political pressure by states.Furthermore, while it might be more appropriate for those considerations to inform the discretionary decisions of the Prosecutor, it is disconcerting to see their trickling into the key paragraphs of the PTC Decision (paras 91-95). As the more diplomatic Alex Whiting put it, ‘[t]he ICC judges grappled with these realities more openly than we’re often accustomed’.

The implications of this are consequential and problematic. 

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