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ESIL-International Human Rights Law Symposium: IHRL and Investment Law – What Could A Human Rights Based Approach Look Like?

Published on February 10, 2016        Author: 

Scholars have increasingly focused (see here, here, here and here) on the relationship between international human rights law (“IHRL”) and international investment law (“IIL”). While some argue (see here, here and here) that IHRL and IIL are mutually re-enforcing, several cases highlight significant tensions between the fields.

When conflicts arise, IHRL rarely fares well. IIL provides a more powerful remedy than IHRL, often allowing for recourse to international remedies without the exhaustion of domestic ones. IIL decisions are also usually binding on the state without review or appeal, and can be enforced against a state’s assets overseas. This can incentivize states to comply with their IIL obligations at the expense of IHRL commitments. If IIL is not simply to “trump” IHRL without consideration for the merits of competing rights, a standard is needed that accommodates both fields. It appears to me that IHRL already provides the necessary tools for reconciling conflicting obligations without unduly burdening (or ignoring) either field.

The threat posed by conflicts between IHRL and IIL is perhaps best illustrated by one of the more disappointing judgments in international law, Suez, Sociedad General de Aguas de Barcelona S.A. and Vivideni S.A. v Argentina. This case arose from the economic crisis of 2001 when Argentina ordered a tariff freeze on water services. The IHRL right to water includes a core obligation that states ensure each individual can access a minimum daily allowance of water. “Accessibility” includes a financial aspect, requiring states ensure the minimum amount is affordable for all individuals, “including the most vulnerable or marginalized sections of the population” (para 12). To meet this obligation, states must not only respect the right but also protect it against corporate actions that would make water financially inaccessible.

Foreign investors with monopolies over water services challenged Argentina’s tariff freeze. They argued, and the tribunal agreed, that the action violated IIL’s “fair and equitable treatment” standard by disrupting investors’ “reasonable expectations” to regulatory stability. In other words, the Government could not take actions to stop corporations from making water prohibitively expensive for poor people because the corporations could not be expected to anticipate government action aimed at protecting access to water. While the state and amicus curiae submissions addressed the IHRL issues, the tribunal concluded there was no conflict between the expectations of IHRL and IIL in this matter. Even if a conflict did exist, the tribunal determined that IHRL has no effect on the state’s IIL obligations. Instead, the state was simply required to “respect both” sets of obligations “equally,” without giving weight to one set of obligations over the other. The panel provided no guidance as to how the state could have done this (para. 262).

The Suez and Vivendi decision, and others like it, create a de facto hierarchy in which IIL is prioritized over IHRL. By disregarding the conflict between the two fields, the tribunal creates a legal paradox for states: they are required to simultaneously abide by standards that are seemingly mutually exclusive. If the Vienna Convention on the Law of Treaties’ Article 31(3)(c) is to have meaning, the answer to conflicts between IHRL and IIL cannot simply be for one regime to ignore the other. As discussed in the ILC’s fragmentation report, a unified application requires interpreting rules and binding obligations in light of other applicable standards. When the fields are as diverse as IIL and IHRL, it is important to develop a framework for analysis that ensures the adequate protection of both fields, without allowing either to displace the other.

The inclusion of IHRL specific clauses in investment agreements, and the use of amicus curiae on IHRL issues have each been touted as potential solutions to the legal conflict. However, neither provides a systematic means of addressing the complex issues of how to resolve direct conflicts in the law. A more systematic treatment may be found in IHRL itself, which, as Edward Guntrip acknowledged, varies in the standards of protections afforded different rights.

The variation in IHRL stems from a recognition that individual rights can conflict, and that the rights of an individual may affect the community at large. This sits in contrast to the foundation of IIL, which anticipates a binary relationship affecting only the state and the investor. The investor makes claims against the state, and the state owes IIL duties only to the investor. The investor and the state become the only relevant parties, with others acting only as interested observers. In IHRL, the state (and consequently the tribunal) is obliged to consider not just the protection owed to an individual claimant, but how that claimant’s rights intersect with or interfere with the rights of third parties or the interests of the state as a whole. Consequently, IHRL includes mechanisms such as derogation clauses, limitations clauses, and minimum core obligations, which regulate a state’s response to competing demands by multiple rights holders.

The ICJ’s advisory opinions in Nuclear Weapons and Palestinian Wall make clear that lex specialis can redefine the contours of a state’s obligations to take into account obligations that arise from other regimes. In such cases, the applicable law is the one more specific to the facts of the case. The right to life – a non-derogable IHRL obligation – is reinterpreted in armed conflict to take account of the rules provided for in international humanitarian law. However, where IHRL provides a more specific rule, such as in the right to education, it remains the dominant standard despite the presence of other rules or obligations. In applying this to the interaction between IIL and IHRL, the factual complexity involved in a conflict between the different rights-holders (individuals or communities with IHRL claims and foreign investors with IIL claims) requires a legal approach that can account for these varying relationships. IIL’s binary nature and IHRL multifaceted approach suggests IHRL will often provide the applicable lex specialis. The focus in IIL on only one relationship – the investor and the state – means the field has developed few internal rules for addressing conflicts with the rights or obligations of other parties. IHRL, on the other hand, provides a series of rules specifically intended to allow the state to simultaneously meet other obligations. It is not the field as a whole, but rather these individual IHRL rules, which allow for prioritizing or limiting rights where necessary to address other rights and obligations, that provide clearer guidance for addressing the facts at IHRL-IIL conflicts. These rules are likely to be the best existing recourse for resolving conflicts between IHRL and IIL.

So what would an IHRL-based approach look like? It would involve asking a series of questions about the rights at issue, and the answers would inform the balance of claims.

The first question is whether a right claimed is jus cogens. It would be unusual for an IIL treaty to require a state to violate a jus cogens norm; if that were to occur, the Vienna Convention on the Law of Treaties makes it clear the IIL treaty would be void (arts. 53 and 64).

What is more likely is an IIL treaty creating obstacles to a state’s obligation to provide remedies for a violation of jus cogens. Take, for example, Colombia’s current land restitution process, which is aimed at restoring property to some of the 5 million people forcibly displaced during the country’s decades-long armed conflict. As the International Criminal Court’s Office of the Prosecutor found in a 2012 interim report, at least some of the relevant displacements met the standard for crimes against humanity (paras 60-67), the prohibition of which may be a jus cogens norm (see M. Cherif Bassiouni’s assessment starting at page 68). Some of that land was subsequently sold to foreign investors. While a complete assessment of this case requires more than a blog post, an IIL treaty’s prohibition on the taking of property without compensation could interfere with the state’s ability to remedy jus cogens violation and restore displaced individuals to their property (i.e., to return them to the state they would have enjoyed but for the violation).

Jus cogens norms supersede any conflicting rights. Violations of jus cogens norms create an automatic right to a remedy for victims. Even when a victim cannot pursue a claim procedurally (see Lorna McGregor’s analysis), the offending state retains an obligation to provide a remedy (Italy v. Germany, para 94). The obligation to remedy is a fundamental aspect of a state’s obligation to abide by the jus cogens norm. No IIL rules are asserted as jus cogens, so remedies for violations of jus cogens human rights standards should supersede competing IIL claims. (Sornarajah has made a similar assertion (p. 228)).

The second question is whether one of the rights can (or should be) limited. IIL scholars who recognize the need to integrate IHRL and IIL have often argued that human rights can be addressed through the “fair and equitable treatment” standard, a provision common in investment treaties that is believed to be part of customary international law. Scholars have argued that this standard allows tribunals to account for the state’s other international obligations as well as for the conduct of the investor. This is hypothetically true, but to date IIL tribunals have not demonstrated this when considering conflicts between IIL and IHRL.

In IHRL, some rights – those most likely to come into direct conflict with others – can be limited in one of three ways. Several civil and political rights have explicit clauses allowing the state to limit the right in the interest of third parties or the state itself (see, e.g., arts. 18-19). For economic, social and cultural rights, the concepts of “minimum core obligations,” “maximum available resources” and “progressive realisation” allow a state to take into account the totality of its obligations and interests when meeting its obligations. The state is expected to give preference to “minimum core obligations” over competing claims. Finally, in a state of emergency, many rights can be derogated from, excusing the state’s obligations for a limited period of time. These means of limiting a human right can be used to prioritise the protections owed both investors and others affected by an investor’s actions.

To prevent against the abuse of limitation clauses, minimum core standards have been recognized for both civil and political rights as well as economic, social and cultural rights. Even where the state may limit an obligation, it cannot eviscerate that obligation. A state’s use of limitation provisions are judged by their reasonableness (or a “margin of appreciation” standard) in light of counter-veiling interests.

Applying this framework in a manner that does not create absurd results requires translating IIL into the language of IHRL. Some standards in IIL clearly carry more weight than others. The prohibitions on direct expropriation of property and on discriminatory treatment are undisputed, while the prohibition on indirect expropriations and modern interpretations of the fair and equitable treatment standard as protecting an investor’s “legitimate interests” are hotly debated and resisted by states. By transferring these preferences and weighting into IHRL terminology, IIL tribunals may find themselves more readily prepared for addressing complex cases involving clashes between IIL and IHRL.

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Filed under: EJIL Analysis, Human Rights

The United Nations Working Group on Arbitrary Detention decision on Assange: ‘ridiculous’ or ‘justifiable’?

Published on February 9, 2016        Author: 

The UN WGAD Assange decision has been met with general ridicule from British officials, legal academics and the press. This piece seeks to bring some balance to the coverage on this decision, which consistently fails to outline the arguments which persuaded the Working Group.

The central argument of Assange’s lawyers’ proceeds on the basis that his confinement in the Ecuadorian embassy ‘cannot … be characterized as volitional’ (para 13). He is not free to leave, because he is protecting himself from the violation of other human rights: ‘the only way for Mr. Assange to enjoy his right to asylum was to be in detention’ (para 11). If Assange were to leave he would be arrested in the UK and extradited pursuant to a European Arrest Warrant (EAW) issued by Sweden. Consequently, he would expose himself to the risk of a ‘well founded fear of persecution’ were he to be extradited to the US from Sweden (para 12). In the words of Assange’s lawyers:

The source submits that Mr. Assange was deprived of his liberty against his will and his liberty had been severely restricted, against his volition. An individual cannot be compelled to renounce an inalienable right, nor can they be required to expose themselves to the risk of significant harm. Mr. Assange’s exit from the Ecuadorian Embassy would require him to renounce his right to asylum and expose himself to the very persecution and risk of physical and mental mistreatment that his grant of asylum was intended to address. His continued presence in the Embassy cannot, therefore, be characterised as ‘volitional’ (para 13).

Assange’s lawyers moves on to the failure of the Swedish authorities to pursue their investigation through less restrictive means. Simply put, the Swedish authorities have ‘not established a prima facie case’ and have refused ‘unreasonably and disproportionately’ to ‘question him through alternative means offered under the process of mutual assistance’ (para 13). Furthermore, they argue that Assange has been deprived of the opportunity to know the case against him, to provide a statement regarding the charges against him, and thus to defend himself against the charges. This combination of factors thus also bears upon the principle of audi alterum partem and the presumption of innocence. The cumulative result of all of these conditions, and the failure to guarantee non-refoulement to the US, have resulted in a situation in which, on Assange’s argument, he has in effect been arbitrarily detained. Read the rest of this entry…

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The Paris Climate Agreement: An Initial Examination (Part III of III)

Published on February 8, 2016        Author: 

Editor’s Note: This is the last post in a series (see Part I and Part II) featuring Professor Jorge Viñuales’ analysis of the landmark December 2015 Paris Agreement. Professor Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

Implementation techniques

The main innovation of the Paris Agreement lies in its implementation techniques and, particularly, the ‘enhanced transparency framework for action and support’ established by Article 13. This mechanism, the first of its kind in global environmental governance, is the embodiment of the approach, followed since the launching of the ADP in 2011, according to which emission targets would be set domestically and measuring, reporting and verification (MRV) would be organised at the international level. It is, of course, not the only technique, as the Agreement also contemplates many others. For analytical purposes, I will make a distinction between information-based techniques, facilitative techniques and the management of non-compliance.

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The Paris Climate Agreement: An Initial Examination (Part II of III)

Published on February 8, 2016        Author: 

Editor’s Note:  This is the second in a series of three posts that continues Professor Jorge Viñuales’ analysis of the landmark December 2015 Paris Agreement.  Professor Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

In yesterday’s post, I examined the context leading to the Paris Agreement, its basic legal structure and goals. ‘The Paris Agreement is appended as an Annex to the ‘Adoption of the Paris Agreement’, Draft Decision -/CP.21, 12 December 2015, FCCC/CP/2015/L.9 (‘Decision’). Today’s post proceeds to scrutinize the Agreement’s three main action areas.  Tomorrow’s final post discusses the implementation techniques applicable in the Agreement, and offers concluding observations.

Action areas

The Paris Agreement sets three main action areas, two of which – mitigation (Articles 3-6) and adaptation (Article 7) – are given particular weight, whereas the third – loss and damage (Article 8) – is more circumscribed, and perhaps even confined within narrow bounds.

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The Paris Climate Agreement: An Initial Examination (Part I of III)

Published on February 7, 2016        Author: 

Editor’s Note:  This is the first in a series of three posts analyzing the landmark December 2015 Paris Agreement, authored by Professor Jorge Viñuales, the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

Less is more, at least sometimes. The 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (‘UNFCCC’) resulted – against all odds – in the adoption of a ‘Paris Agreement’ (hereafter, “Decision”) which will be opened for signature on the 22 April 2016. (The Paris Agreement is appended as the Annex to the Decision.) The Paris Agreement is not perfect, but is more than many of those who have followed the climate negotiations over the years realistically expected.  My purpose here is not to provide a comprehensive analysis of this instrument. That will come in time, once the new Ad Hoc Working Group on the Paris Agreement (‘APA’) but also a number of other Party and ‘non-Party stakeholders’ (Decision, paras. 134-137).  have provided further details as to both the modalities of the different mechanisms introduced by the Agreement and the variety of nationally determined contributions and other actions pledged in connection with mitigation and adaptation. However, from the perspective of a lawyer and addressing an audience of lawyers, I thought it would not be without interest to provide an annotated snapshot of the legal architecture of the Paris Agreement.  Part I of these posts focus on the context that led to the adoption of the Paris Agreement and provides an original schematic of the Paris Agreement and the goals of the Paris Agreement.  Part II tomorrow will set out the three main components of the Paris Agreement’s architecture and offers concluding observations.  Finally, Part III will discuss the implementation techniques of the Agreement and offer concluding observations.

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Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: International Criminal Law and International Human Rights Law

Published on February 5, 2016        Author: 

International criminal law and human rights might, at one level, seem to be antipathetic. Not least, because, at the domestic level, most international human rights lawyers tend (and very frequently rightly) to decry the excesses of domestic criminal justice systems both at the procedural and substantive level.

It might be thought, therefore, that it is a little ironic that many human rights NGOs speak in stern terms of the necessity of the prosecution of international criminals, whilst excoriating the treatment of defendants in domestic law. The claims of irony are misplaced. The issue that most NGOs on point are raising is the abuse of authority by the powerful, and the appropriate responses to it. Hence, domestically, their focus tends to be on the treatment of often vulnerable, defendants, whereas when it comes to international crimes, the focus tends to fall on ensuring the accountability of usually powerful, perpetrators. I see no fundamental inconsistency in this. Nonetheless, the relationship between international criminal law and human rights is not simple.

For the purposes of this post, I will pass aside certain issues, such as the relationship between human rights law and the procedure of international and internationalised criminal tribunals, and the extent to which human rights are lived up to at the post-conviction (or acquittal) stage of international proceedings. There are others who are far better placed than I to discuss those issues. Here I will reflect briefly on three things: first, the substantive coverage of international criminal law; second, the relationship of international criminal law and international human rights law; and third, the extent to which they ought to overlap. These thoughts are preliminary, and intended to provoke debate rather than pre-empt it, still less foreclose it.

For the first part I will take as read that what we mean by international crimes as being the ‘big four’: aggression, crimes against humanity, genocide, and war crimes. Second, I will consider human rights law as being reflected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. There is more to be said about treaties at the liminal point between international human rights law and international criminal law, such as the Torture Convention, and the Convention on Enforced Disappearances, but here is not necessarily the place to engage in that debate. Third, I will look at the extent to which international criminal law and international human rights law jurisprudence (which is itself not a unified system of law) ought to influence one another. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law – A Research Agenda

Published on February 4, 2016        Author: 

In our first post as co-chairs of the ESIL Interest Group on Human Rights, we suggested that human rights are central organising principles of public international law. We noted that:

International human rights law routinely interacts with other sub-branches of public international law by demanding new interpretations of existing law (cf. the principle of territorial application of treaties as regulated in the Vienna Convention on the Law of the Treaties); by qualifying existing obligations under other bodies of law (cf. international human rights law and the law of occupation); or imposing procedural and substantive obligations onto other bodies of law (cf. the ICC Statute).

In this symposium, we deepen our inquiry into the relationship of international human rights law (IHRL) with other sub-branches of public international law. We do so by examining in what ways and the extent to which IHRL has shaped and influenced the development of international criminal law, the law of armed conflict, international investment law, cultural heritage law and development. Looking at interactions between IHRL and a number of other sub-branches of public international law (PIL) demonstrates that there are both divergences and convergences in why and how far IHRL influences other bodies of PIL.

The contributions in this symposium indicate that all sub-branches under discussion interact with IHRL. There are, however, significant variations in how far they interact, the terms of interaction and the assessments of the consequences of such interaction. What explains such variation? Our contributors identify push and pull factors.

The purposive affinity between IHRL and other branches of PIL emerges as an important factor supporting IHRL’s influence on other branches. Lixinski on international cultural heritage law, Murray and Hampson on international humanitarian law, and Cryer on international criminal law, all point out that interactions with IHRL are strong because there are overlaps between what these bodies of law are seeking to achieve and IHRL. Van Ho’s post, on the other hand, points to the perceived lack of purposive affinity between IHRL and international investment law accounting for the limited interaction between the two sub-branches. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law

Published on February 4, 2016        Author: 

We are happy to announce that over the course of this week and next we will be hosting an ESIL Interest Group on Human Rights blog symposium on the interactions between international human rights law (IHRL) and other sub-branches of international law. This follows the previous ESIL-IHRL Online Symposium – Is There General International Human Rights Law?

The discussion will start with an introduction by Başak Çali and Lorna McGregor, co-chairs of the ESIL Interest Group on Human Rights. The symposium will go on to consider the relationship between IHRL and other areas of public international law. Lucas Lixinski will analyse the interaction between IHRL and international cultural heritage law, whilst  Francoise Hampson and Daragh Murray will review its relationship with international humanitarian law. Robert Cryer will consider the interaction with international criminal law, Tara Van Ho the relationship with international investment law accounting, and Siobhán McInerney-Lankford the interaction of IHRL and development regimes.

We are grateful to all of the contributors for participating in what we are sure will be a fascinating symposium.

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Filed under: EJIL Analysis, Human Rights

Austria and the Fight Against the “Islamic State”: Whither Neutrality?

Published on February 3, 2016        Author: 

The most recent escalation of the conflict in Syria and the Paris attacks have once again led to intense debates over the still unresolved question of self-defence against non-state actors, the role of UN Security Council resolution 2249 in this regard, and the EU’s mutual defence clause enshrined in Article 42(7) of the Treaty on European Union. While these issues are of particular importance for those states that recently joined the military efforts against the “Islamic State’s” safe haven in Syria , i.e. the UK or Germany, they also affect one of the most delicate topics in Austria: its permanent neutrality.

In September 2015 foreign minister Sebastian Kurz declared that Austria had joined the alliance against the “Islamic State”, albeit without any military consequences. After France invoked the EU’s mutual defence clause, however, Austrian Defence minister Gerald Klug – emphasizing that he was voicing his personal opinion – openly stated that “there cannot be neutrality against terrorism.” From this point of view, measures typically deemed as being incompatible with neutrality, particularly flight permits for military aircraft on their way to Syria, do not pose a problem. Upon closer inspection, however, things are less clear.

Austria’s status as a permanently neutral state is a product of the negotiations with its four occupying powers – the US, the UK, France, and the Soviet Union – following the Second World War. According to Article I of the “Federal Constitutional Law on the Neutrality of Austria”, Austria “is resolved to maintain and defend its [permanent] neutrality with all the means at her disposal” and “will never in the future accede to any military alliances nor permit the establishment of military bases of foreign States on her territory.” Back in 1955, Austria notified all 63 states it entertained diplomatic relations with at that time of this law and asked for recognition of its status as a permanently neutral state. Hence, it is not only bound internally but also under international law to this very day (although it could, in the opinion of the Austrian Ministry for Foreign Affairs, unilaterally revoke this status regardless of whether other states take note or agree). Read the rest of this entry…

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