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Home Archive for category "EJIL Analysis"

The Law and Politics of the Kosovo Advisory Opinion

Published on April 20, 2015        Author: 

The Law and Politics of the Kosovo Advisory OpinionI’m happy to report that OUP have now published a collection of essays edited by Sir Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion. Michael and I are especially happy with the cover, which is gloomy in a very nice way. Our intro to the book is available here, while a smattering of draft chapters is also freely available on SSRN.

Here are the blurb and the ToC:

This volume is an edited collection of essays on various aspects of the 2010 Kosovo Advisory Opinion of the International Court of Justice. The main theme of the book is the interplay between law and politics regarding Kosovo’s independence generally and the advisory opinion specifically. How and why did the Court become the battleground in which Kosovo’s independence was to be fought out (or not)? How and why did political arguments in favour of Kosovo’s independence (e.g. that Kosovo was a unique, sui generis case which set no precedent for other secessionist territories) change in the formal, legal setting of advisory proceedings before the Court? How and why did states supporting either Kosovo or Serbia choose to frame their arguments? How did the Court perceive them? What did the Court want to achieve, and did it succeed in doing so? And how was the opinion received, and what broader implications did it have so far? These are the questions that the book hopes to shed some light on. To do so, the editors assembled a stellar cast of contributors, many of whom acted as counsel or advisors in the case, as well a number of eminent scholars of politics and international relations whose pieces further enrich the book and give it an interdisciplinary angle. The book thus tells the story of the case, places it within its broader political context, and so attempts to advance our understanding of how such cases are initiated, litigated and decided, and what broader purposes they may or may not serve.

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Mauritius v. UK: Chagos Marine Protected Area Unlawful

Published on April 17, 2015        Author: 

On 1 April 2010, the UK declared the world’s largest Marine Protected Area (MPA) around the Chagos Archipelago. The Archipelago is one of 14 remaining British overseas territories, administered by the UK as the British Indian Ocean Territory (BIOT). In contrast to other British overseas territories such as the Falklands/Malvinas and Gibraltar, BIOT is not on the UN list of non-self-governing territories. There is currently no permanent local population because the UK cleared the archipelago of the Chagossians between 1968 and 1973.

Mauritius and the UK both claim sovereignty over the Chagos Archipelago. The largest island of the Chagos Archipelago – Diego Garcia – has since the late 1960s housed the most important US military base in the Indian Ocean. The UK leased the island for defense purposes to the US in 1966, prior to Mauritian independence in 1968. The 50-year lease of Diego Garcia is due to be renewed in 2016.

In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK), a tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) issued its award on 18 March 2015. The tribunal found that the UK’s declaration of the MPA disregarded Mauritius’ rights, rendering the MPA unlawful. The award raises the prospect that the renewal of the lease in 2016 will require the UK to meaningfully consult Mauritius.

Mauritius made four submissions to the tribunal:

First: The UK was not entitled to declare a MPA because it was not a coastal state under UNCLOS (the ‘sovereignty claim’, according to the UK)

Second: The UK was prevented from unilaterally declaring the MPA due to Mauritius’ rights as a coastal state under UNCLOS

Third: The UK may not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission to the Commission that Mauritius may make

Fourth: The UK’s declaration of the MPA was incompatible with substantive and procedural obligations under UNCLOS

The jurisdictional part of the award is centered on whether the four submissions concern the ‘interpretation or application of UNCLOS’ under Article 288 UNCLOS. This blog entry concentrates on the merits as regards the Fourth Submission. Read the rest of this entry…

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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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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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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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Filed under: Editorials, EJIL, EJIL Analysis
 

25 Years of EJIL – A Retrospective

Published on March 31, 2015        Author: 

When planning first began to launch a journal of international law with a specifically European orientation the Berlin Wall was still standing. EJIL was born in a time of intense change – the first issue was published in 1990, the year of German reunification – and, indeed, the life of the Journal tracks our post-Cold War world. Twenty-five years later we celebrate EJIL’s birthday with a Retrospective – an exhibition in which visitors can glimpse not only the evolution of the Journal and the discipline but also in many respects the last quarter century in the life of international affairs and international law.

The exhibition, available on the EJIL and OUP websites, includes a main feature and some special exhibits. We selected, chronologically, year by year, two or more articles to represent each volume. Like curators of an exhibition we combed the EJIL archive, at times marvelling at the rich choice of articles and at times anguishing over the difficult and ultimately subjective selection. We tried to choose articles that would give a flavour of the world in which they were written, the diversity of scholarly approaches which has been a hallmark of EJIL since its inception and, plain and simply, a ‘good read’ even in some cases after many years.

A number of special exhibits complete the Retrospective. The EJIL Tables of Contents have been aggregated into one chronological file, providing a fascinating account of the evolving field of international law and its community of scholars. EJIL has always had an eye for young talent and readers may well recognize some of today’s most respected scholars in their more youthful productions. The Editorials, too, have been collated into a single file, reflecting different styles and sensibilities of our various editors. Our Book Review Editor, Isabel Feichtner, selected 25 book reviews, one for each year, memorable for the book or for the review, to create another special exhibit. Finally, the Roaming Charges photos and the Last Page poems have been collated into special exhibits.

We hope you will enjoy the Retrospective and join us in a toast to another 25 years of academic excellence and innovation in EJIL.

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Filed under: Editorials, EJIL, EJIL Analysis
 

In this Issue

Published on March 30, 2015        Author: 

This issue opens with the first entry under our new, annual rubric, The EJIL Foreword. Taking the ongoing debate concerning the United Nations’ role in the Haitian cholera tragedy as his starting point, Jan Klabbers presents a masterly tour d’horizon of the intellectual origins, current state, and future prospects of the law of international organizations. In the process, he reconstructs – and exposes the blind spots and biases – of a functionalist theory that he identifies as specific to and underlying that law.

In the next article in the issue, Janina Dill presents a novel framework for understanding the different set of demands made on states in war. Identifying ‘three logics of waging war’ – associated respectively with international humanitarian law, military strategy, and an individual rights-based morality – she concludes that the three cannot be reconciled, presenting war-making states with an irresolvable ‘trilemma’. On a related topic, but adopting a very different approach, Amanda Alexander presents a new and revisionist history of international humanitarian law, locating its origins in the work of a particular set of actors from the 1970s onwards. Bart Smit Duijzentkunst and Sophia Dawkins, draw from relational contract theory to construct an innovative model of arbitration in peace processes, and demonstrate the value of that theory and model through a set of carefully presented case studies. And Ulf Linderfalk’s short article on the perennially relevant topic of treaty interpretation adduces a series of well-chosen examples to elucidate the relationship between the aims and means of interpretation.

In Roaming Charges, the ‘Moment of Dignity’ is  a photograph that celebrates the small traditions we risk losing in our fast-moving world. The photographer is Martin Lestra, PhD researcher at the European University Institute. We remind our readers that submissions to Roaming Charges are welcome.

The articles section of this issue is rounded out by the return of two of our regular rubrics, EJIL: Debate! and Critical Review of International Jurisprudence, both addressing topics relating to the European Court of Human Rights. Under the first, we present Stéphanie Hennette Vauchez’s somewhat provocative article on the issue of gender balance within the Court, assessing the politics of the appointment process through a detailed analysis of the self-presentation by the 120 or so women who have applied for positions on the Court. We publish Replies by Françoise Tulkens and Fionnuala Ní Aoláin, both of whom have direct, personal experience of that process. Finally, Paolo Lobba surveys the development of the Court’s jurisprudence on Holocaust denial, which he argues has important implications for ‘denialism’ in relation to other core international crimes.
The Last Page, offering nourishment for the soul as well as the mind, presents a poem by Dimitri Van den Meerssche entitled ‘Calling Themis’.

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Filed under: Editorials, EJIL, EJIL Analysis