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Home Archive for category "EJIL Analysis"

The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

Published on June 30, 2016        Author: 

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

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29 + 1 = 30 – The Kampala Amendment on the Crime of Aggression and the Recent Accession by Palestine

Published on June 29, 2016        Author: 

Some time ago, I wrote a contribution entitled ‘Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression’ on the question as to whether those States that ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted ought to be counted towards the 30 acceptances required for the activation of Kampala amendments.

On 22 June 2016 Iceland became the 29th State to ratify the amendment, and, most recently, on June 26, 2016 Palestine ratified the said amendment (see also here for the text of the relevant depositary notification), rendering the issue just mentioned possibly moot. The 30th ratification of the Kampala amendment on the crime of aggression by Palestine now seems to open the possibility for the Assembly of States Parties, to adopt after January 1st 2017 the decision to activate the Court’s treaty-based aggression-related jurisdiction provided for in Art. 15bis para. 3 Rome Statute with all its possible repercussions for both the Court, but also for the international legal system at large.

Provided there will be no more ratifications forthcoming between now and early 2017 (which however might still be the case given the fact that the process of ratifying the Kampala amendment is ongoing in some States), any such possible ‘activation’ of the Court’s jurisdiction would however depend on the question whether the recent submission by ‘Palestine’ of its instrument of accession of the Kampala amendment ought to indeed be counted towards the necessary quorum of 30 ratifications. Read the rest of this entry…

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Brexit and Hamilton’s King George: You’ll Be Back and What Comes Next

Published on June 28, 2016        Author: 

If I may be forgiven for lowering the level of conversation (yet again) after the excellent post by Jure Vidmar & Craig Eggett and Larry Helfer’s post over on Opinio Juris discussing many important legal issues – I just wanted to share a (rare) happy Brexitian thought. In Broadway’s smash-hit Hamilton, coming soon to London’s West End, King George sings a delectable British Invasion-y break-up song to his American soon-to-be-ex subjects (“You’ll Be Back”) and then follows up with two shorter songs on the same tune (one of them, “What Comes Next”, works magnificently here as you’ll see). Now, I concede that the analogy is imperfect, but humour me. Just picture in your head Donald Tusk or (better yet) Jean-Claude Juncker at his charming best, belting this out to Britain on behalf of the EU. Got that? Hold that in, take a breath. Then listen, read the lyrics below, and tell me you can’t feel the magic. Am I right or what?

 

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Filed under: EJIL Analysis, European Union
 
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Brexit: Is everything going to change in law, so that very little would change in fact?

Published on June 27, 2016        Author: 

‘A full calorie Brexit or Brexit lite?’, Marko Milanovic has asked on this blog. The different modalities of Brexit are rooted in Article 50 TEU, which foresees a period of two years to negotiate the precise terms of UK’s exit and a future relationship between the UK and the EU. Moreover, the referendum does not have any self-executing legal effects. It will now be on the UK government to decide when (and whether?) Article 50 should be triggered. We agree with Marko’s excellent analysis and believe that, in principle, a number of lite exit diets could be created. What is also possible is that we would get three parallel Brexits, some with more calories than others. England and Wales could leave on different terms than Northern Ireland (which may at least theoretically even stay via the Republic of Ireland); and it is possible that Scotland would continue the UK’s membership with some revisions – and as an independent state.

Brexit lite: replacing EU law with international treaty law

Article 50 does not exclude – perhaps it even encourages – the conversion of a full-fledged membership into a ‘Switzerland-plus-minus’ arrangement. Hence the phrasing in Article 50(2) TEU: ‘[T]aking account of the framework for its [of the exiting member state] future relationship with the Union.’ If it were envisaged from the outset that this relationship would be the same as the relationship between the Union and e.g. Panama, this phrasing would have been completely redundant. Yet, any Conservative PM would probably have difficulties accepting a single market deal with the present free movement of people package. It is difficult to imagine, on the other hand, that the EU could give the UK an asymmetric free movement deal, without people. But then, there is some room to manoeuvre. Read the rest of this entry…

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Announcements: Memorial for John Jones QC; CfP – Panel on Emotional Warfare and its Limits

Published on June 26, 2016        Author: 

1. Memorial for John Jones QC. The Members of Doughty Street Chambers will be holding a celebration of the life and many personal and professional achievements of our much missed friend and colleague John Jones QC. All are welcome to join us at Middle Temple Hall (click here for directions) on Wednesday 6 July for a Memorial starting at 5pm followed by a reception in Middle Temple gardens. The Hall will be accessible from 4.30pm. There will also be a celebration in The Hague, to be held on Wednesday 29 June (venue to be confirmed; details will be available through our homepage). So we can cater appropriately please let us know if you plan to attend either event by sending us an e-mail (events {at} doughtystreet.co(.)uk). Please direct any telephone queries to Chelsea McLaren on 020 7404 1313. Messages of support can be sent to condolences {at} doughtystreet.co(.)uk and cards or letters can be sent to Chambers. These will be forwarded to John’s family, who will also be the beneficiaries of a fund we have set up in his memory (details available on request).

2. Call for Papers: Panel on Emotional Warfare and its Limits. The Hugo Valentin–Centrum of the Uppsala Universitet Emotional Warfare and its Limits is pleased to announce a call for papers for its upcoming panel on “Emotional Warfare and its Limits: Towards an Affective Turn in International Humanitarian Law”, organized in the context of the International Conference on “Historicising International (Humanitarian) Law? Could we? Should we?” on 6 – 8 October 2016. When and why did the law of armed conflict become “humanitarian”? What role do fear, envy, or friendship play in the regulation of war? Can law offer an effective way out of the irrationality of violence? Possible answers to these questions cannot be addressed by means of strictly legal arguments, and should find place in other disciplines which have been traditionally permeated by an emotional discourse.  Abstracts of no more than 500 words should be submitted by e-mail to Emiliano J. Buis (ebuis {at} derecho.uba(.)ar) and Ezequiel Heffes (ezequielheffes {at} gmail(.)com) no later than 18 July 2016. Abstracts should be accompanied by name, affiliation and e-mail address. Any questions about these themes or the suitability of a possible submission may be directed by e-mail as above.

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Filed under: EJIL Analysis
 

Stairway to Brexit

Published on June 24, 2016        Author: 

So it is Brexit. As if the current volatile mix of crises affecting Europe and the world was not enough, British voters  may have just dealt a death blow to the European Union (by 52% to 48%). Or things will eventually work out – nobody really knows. Nor does anybody really know whether we will now have an economic meltdown, or what exact arrangements Britain will negotiate with the EU, i.e. whether it’ll be full-calorie Brexit or Brexit lite, e.g. with respect to the single market and the free movement of people. What we do know is that the UK and the EU are entering a prolonged period of uncertainty.

We have seen (yet again) the power of emotion and identity politics, driven largely by concerns over immigration, with people voting with their guts rather than with their brains – see also Trump, Donald. (Do you know you have more nerve-endings in your gut than in your head? Look it up.) We have also seen how momentous events are shaped not only by structural processes, but also by petty decisions of single individuals who were in the right place at the wrong time. Brexit would never had happened had David Cameron not made a promise he probably didn’t think he would have to keep to have a referendum, all to appease malcontents within his own party. And while a similar gamble succeeded (just barely) with the Scottish referendum, here it backfired rather spectacularly. The Disunited Kingdom, in which London, Scotland and Northern Ireland have all voted Remain but most of England has voted Leave, is very much a reality – at least for now, since Scotland will likely have a second independence referendum in the next few years. That, and the austerity which had the greatest impact on the most vulnerable of people, is the sad legacy of Cameron’s premiership. He has just announced that he will be stepping down as prime minister by October, but the irony is that we may yet remember him sentimentally under, say, a prime minister Boris Johnson.

In other, happier news, Led Zeppelin was cleared by a US jury of charges of plagiarizing the Stairway to Heaven. So enjoy the video below (including Robert Plant’s pant Brexit), while contemplating the future.

 

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Filed under: EJIL Analysis, European Union
 
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Grand Chamber Judgment in Al-Dulimi v. Switzerland

Published on June 23, 2016        Author: 

This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.

By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.

So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:

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Arbitral Controls and Policing the Gates to Investment Treaty Claims against States in Transglobal Green Energy v. Panama and Philip Morris v. Australia

Published on June 22, 2016        Author: 

Investor-State arbitral tribunals are increasingly policing the gates to investment treaty claims against States. The initiation of investment treaty claims against States remains subject to a high threshold of good faith against possible abuse of process by investors, as recently stressed by arbitrators Dr. Andres Rigo Sureda (President), Professor Christoph Schreuer, and Professor Jan Paulsson, in their 2 June 2016 Award in Transglobal Green Energy LLC and Transglobal Green Panama S.A. v. Republic of Panama. The Tribunal upheld Panama’s objection to jurisdiction on the ground of “abuse by Claimants of the investment treaty system by attempting to create artificial international jurisdiction over a pre-existing domestic dispute.” (Transglobal Award, para. 118). The Transglobal Award was issued six months after another tribunal in Philip Morris International v. Australia [composed of arbitrators Professor Karl-Heinz Böckstiegel (President), Professor Gabrielle Kaufmann-Kohler, and Professor Donald M. McRae] issued its landmark 17 December 2015 Award on Jurisdiction and Admissibility, declaring that: “the commencement of treaty-based investor-State arbitration constitutes an abuse of right (or abuse of process) when an investor has changed its corporate structure to gain the protection of an investment treaty at a point in time where a dispute was foreseeable. A dispute is foreseeable when there is a reasonable prospect that a measure that may give rise to a treaty claim will materialize.” (Philip Morris Award, para. 585.) While to date there is scarcely any doctrinal unanimity over what comprises abuse of process, abuse of rights, or bad faith institution of investor-State claims [see for example Eric De Brabandere, Good Faith, Abuse of Process, and the Initiation of Investment Treaty Claims, 3 Journal of International Dispute Settlement 3, pp. 1-28 (2012), these recent arbitral decisions provide concrete guidance of factors that tribunals have taken into account to determine whether investor-claimants instituted investment treaty arbitration proceedings in good faith.

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Protecting Public Welfare Regulation Through Joint Treaty Party Control: A ChAFTA Innovation

Published on June 21, 2016        Author: 

Anthea%20Roberts%20PhotoIf countries wish to protect legitimate and non-discriminatory public welfare regulation from investor-state claims, what options do they have? This post highlights an innovative feature in the recent China-Australia Free Trade Agreement (ChAFTA) that goes well beyond existing safeguards for protecting the regulatory autonomy of states by providing a mechanism for joint treaty party control. In doing so, ChAFTA evidences a new and controversial step in efforts to recalibrate interpretive authority between arbitral tribunals and the treaty parties acting collectively.

Richard BraddockNewer-style investment treaties often seek to protect countries’ regulatory autonomy by reaffirming the importance of public welfare regulation in the preamble; refining and clarifying core investment protections; and sometimes including general exceptions clauses. These approaches are useful but have limits. Preambular provisions are non-binding. Substantive clauses are binding, but states may not wish to allow arbitral tribunals to second-guess the permissibility of sensitive public welfare measures. Even if respondent states ultimately prevail, they are likely to expend considerable resources in time and money in defending claims.

Faced with these concerns, China and Australia broke new ground in ChAFTA by including a mechanism that protects public welfare measures through joint treaty party control. ChAFTA provides that, “Measures of a Party that are non-discriminatory and for the legitimate public welfare objectives of public health, safety, the environment, public morals or public order shall not be the subject of a claim” by an investor (Article 9.11.4). If an investor challenges a regulatory measure, the respondent state is permitted to issue a “public welfare notice” specifying why it believes that the measure falls within this exception. The arbitration proceedings are then suspended and a 90-day consultation period with the other treaty party is triggered (Article 9.11.5-9.11.6).

If the treaty parties agree that the challenged measure fits within the scope of the carve-out, the decision is binding on any investor-state tribunal and any decision or award issued by such a tribunal must be consistent with that decision (Article 9.18.3). Read the rest of this entry…

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Belgium’s Article 51 Letter to the Security Council [UPDATED]

Published on June 17, 2016        Author: 

On 7 June, the government of Belgium sent an Article 51 letter to the President of the Security Council, justifying its military action on the territory of Syria against ISIS by way of collective self-defense. The ODS link to the letter is here (S/2016/523), and here is the key paragraph articulating Belgium’s legal position:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. Exercising the right of collective self-defence, Belgium will support the military measures of those States that have been subjected to attacks by ISIL. Those measures are directed against the so-called “Islamic State in Iraq and the Levant” and not against the Syrian Arab Republic.

Interestingly, this paragraph is taken almost word-for-word from the letter Germany had sent to the Council on 10 December 2015, S/2015/946:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.

Note, however, some of the differences: Belgium calls this an exceptional situation, somewhat diplomatically removes the reference to the lack of any need for Syria’s consent, even though that’s implicit in its invocation of Article 51, and adds a sentence saying that measures taken in self-defence are directed at ISIS rather than against Syria (even if Belgian airplanes are flying in Syrian airspace and discharging weaponry on Syrian territory without its consent). Both Germany and Belgium endorse a position whereby action against a non-state actor operating from the territory of another state is permitted without that state’s consent if the state lost effective control over the relevant area – this is very close to, but not necessarily exactly the same thing, as the ‘unwilling and unable’ test.

UPDATE: Many thanks to everyone contributing in the comments. I’d say that perhaps the most valuable lesson to be learned from this discussion is how all of these states are strategically using ambiguity in their various letters to the Council. They know perfectly well that the formulations that they have chosen are open to several possible interpretations, and they were deliberately chosen precisely with that in mind – not simply as a matter of diplomacy, but in order to create legal cover for what they want to do today while keeping their options open for the future. Nothing less could be expected, of course, when we bear in mind that the Council’s ISIS resolution 2249 is itself a masterful example of such a use of ambiguity. But ambiguity of this kind is also obviously detrimental when it comes to solidifying a clear position with regard to self-defence against non-state actors on the basis of state (and UNSC) practice.

In that regard, a kind reader also let me know that Norway has also sent a letter to the Council, dated 3 June, S/2016/513. The three key paragraphs are quoted below the fold – note how simply wonderful Norway is in saying nothing, beyond simply stating that it is exercising the right to collective self-defence without directing its actions against Syria.

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