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Home Archive for category "EJIL Analysis" (Page 2)

Towards a Constitutional Law Framework for Investment Law Reform

Published on January 5, 2015        Author: 

Reforming international investment law and investor-state arbitration is a widespread concern. This is nowhere more manifest than in the heated debates (in Germany and elsewhere) about the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP). Should there be investor-state arbitration between economies with well-functioning legal systems? Do we need an appellate mechanism to control arbitral tribunals? Who should serve as arbitrator and what ethical standards govern? And how should the substantive standards of investment protection be formulated in order to safeguard policy space for host states? These are some of the questions debated. At the same time, reforming international investment law is not only on the agendas of contracting parties, it also plays an important role for international organizations, such as the United Nations Conference on Trade and Development (UNCTAD), the Organisation for Economic Co-operation and Development (OECD), or the Southern African Development Community (SADC).

The Need for a Normative Framework for Investment Law Reform

The reform proposals that result from these various initiatives reflect the political pressure international investment law is facing; they also put pressure on states to remedy the discontents with the current system (see my earlier post on EJIL: Talk!). At the same time, the large number of reform proposals currently floated risk fragmenting investment law even further. This can be counterproductive if the aim is to arrive at an investment law regime that is both balanced and predictable. Furthermore, reform proposals themselves reflect underlying political and ideological preferences that may not be globally shared. What is needed therefore is a debate about these preferences and their impact on investment law reform. In other words: we need a broader debate about the normative framework for investment law reform.

As I argue in my Editorial of the latest Special Issue of the Journal of World Investment and Trade (entitled ‘Towards Better BITs? – Making International Investment Law Responsive to Sustainable Development Objectives’), this framework should not be seen only as a matter of (potentially short-lived and changing) economic policies that differ from one country to another. Instead, we should develop a framework for investment law reform on the basis of more fundamental principles, in particular if we are looking for ‘systemic reform’ that makes international investment law acceptable to all states. This requires – as Karl Sauvant and Federico Ortino rightly point out in a recent study – consensus-building processes about underlying assumptions and objectives for investment law reform. Read the rest of this entry…

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Our Most Read Posts in 2014

Published on December 31, 2014        Author: 

This has been another successful year for EJIL:Talk as readership of the blog continues to grow. We are grateful to you, our readers, for coming back to us again and again. A new addition to the European Journal of International Law this year has been the introduction of EJIL:Live! which is a series of video and audio podcasts released at the same time as the publication of each quarterly issue of the Journal. The video and audio episodes feature an in-depth discussion between the authors of one article that appears in the issue and EJIL’s Editor in Chief, Joseph Weiler. I have to say, on a personal note, that I have thoroughly enjoyed those discussions. To my mind, the spoken word, and the back and forth of dialogue, adds much value to the written text in the journal. They greatly enrich critical understanding of the author’s argument and also of the area in which it is situated. The authors not only explain the argument in their article, but also discuss the inspiration and motivations for writing the piece. In the discussion, the arguments are not only explored and challenged, but the authors are also pushed to explain the significance of the argument – why does it matter? how does it matter? There is much to be gained from listening or watching. In addition to discussion with authors, the audio podcasts also include a variety of news and reviews (including discussions from or about the blog).

EJIL: Live Extras! are shorter, in-a-nutshell, episodes which address a variety of topical and interesting issues. Earlier this month 3 episodes of EJIL:Live Extra! became available for viewing. They are interviews with Aharon Barak, former President of the Israeli Supreme Court on the Israeli Supreme Court’s approach to standing and justiciability; Brian Leiter, University of Chicago on whether freedom of religion deserves special protection; and André Nollkaemper, President of the European Society of International Law (ESIL) on the first 10 years of ESIL.

Below are our 20 most read posts of 2014. As is apparent from simply glancing at the list, Russia’s intervention in and subsequent annexation of Crimea was the issue that generated most interest among our readers this year.  We wish you a very Happy New Year and a happy 2015!

1. Daniel Wisehart, The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

2. Nico Krisch, Crimea and the Limits of International Law

3. Christian Marxsen, Crimea’s Declaration of Independence

4. Dapo Akande, The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect

5. Jure Vidmar, Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

6. Douglas Guilfoyle, So, you want to do a PhD in international law?

7. Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy

8. Philip Leach, Ukraine, Russia and Crimea in the European Court of Human Rights

9. Lauri Mälksoo Crimea and (the Lack of) Continuity in Russian Approaches to International Law

10. Dapo Akande, Appeal from the Ukrainian Association of International Law Read the rest of this entry…

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Filed under: EJIL, EJIL Analysis
 

Let Not Triepel Triumph – How To Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order

Published on December 22, 2014        Author: 

The Italian Constiutional Court’s decision no. 238 of 22 Oct. 2014 (unofficial translation into English) already inspired a flurry of comments in the blogosphere (see in EJIL talk! Christian Tams (24 Oct. 2014) and Theodor Schilling (12 Nov. 2014); on the Verfassungsblog amongst others Filippo Fontanelli (27 Oct. 2014); on Opinio Juris Andrea Pin (19 Nov. 2014); on the Völkerrechtsblog Felix Würkert (11 Dec. 2014)).

In that Sentenza, the Corte refused to give effect to the ICJ’s judgment (in) Jurisdictional Immunities of the State (Germany v. Italy) of 3 February 2012, in which the ICJ had upheld the principle of state immunity against allegations of serious human rights violations of German state organs committed during the Second World War.

Sentenza No. 238 is important not only because it concerns the persisting tension between respecting (state) immunity and protecting human or fundamental rights (see for a recent publication Anne Peters/Evelyne Lagrange/Stefan Oeter/Christian Tomuschat (eds), Immunities in the Age of Global Constitutionalism (Leiden: Brill 2015)), but – maybe even more importantly – because it concerns the relationship between international law (in the shape of a judgment by the ICJ) and domestic law, as applied by a domestic (constitutional) court.

Just the latest item in the sequence of domestic courts’ resistance against decisions of international bodies  

The Corte relied on its established case-law on the effects of European Union law, notably on the doctrine of controlimiti in order to erect a barrier to the “introduction” of the ICJ judgment into the domestic legal order: “As was upheld several times by this Court, there is no doubt that the fundamental principles of the constitutional order and inalienable human rights constitute a ‘limit to the introduction (…) of generally recognized norms of international law’ (…) and serve as ‘counterlimits’ [controlimiti] to the entry of European Union [and now international] law” (Sentenza No. 238, in “The law”, para. 3.2.). Read the rest of this entry…

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Revisiting the Five Techniques in the European Court of Human Rights

Published on December 12, 2014        Author: 

Ireland v United Kingdom was the first inter-state case before the European Court of Human Rights (ECtHR). Decided in 1978, it revolved around internment in Northern Ireland and the techniques used by British forces when interrogating internees at the height of ‘The Troubles’. As regards the treatment of the internees, the Court found that the use of the so-called ‘Five Techniques’ amounted to inhuman and degrading treatment, but did not meet the threshold of severity to attract the “special stigma” of a torture finding against the United Kingdom. Since then, the Court has confirmed that what constitutes ill-treatment of sufficient severity to be deemed ‘torture’ under Article 3 can be subjected to the ‘living instrument’ doctrine (Selmouni v France), and various scholars have remarked that, should the Court be confronted with the same facts now as it was in Ireland v United Kingdom, a finding of torture would be handed down. Now, following investigative journalism by RTÉ (the Irish national broadcaster), new evidence has come to light that may well test this supposition.

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Jurisdiction, Attribution and Responsibility in Jaloud

Published on December 11, 2014        Author: 

In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.

It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:

There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.

Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.

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ICC Prosecutor Says Full Inquiry into Russian War Crimes Might Come Soon, But Omits Some Crimes

Published on December 10, 2014        Author: 

The ICC’s Office of the Prosecutor recently released its annual report on preliminary examinations. The big news, analyzed by many commentators, is that the OTP is conducting a preliminary examination of alleged crimes of torture by U.S. forces in Afghanistan. In the highly unlikely eventuality that the OTP does not close the investigation on one of a variety of procedural grounds, it could be the Court’s first confrontation with a powerful Western state, and its first proceedings against nationals of a non-member state for actions on the territory of a member state.

But the U.S. is not the only major power and non-state party that the report throws down the gauntlet to. The 2014 report announced that a full investigation of potential Russian crimes committed in Georgia may be opened “in the near future.” Since 2008, the OTP has been investigating “the situation in Georgia,” that is, the 2008 Russo-Georgian war, that resulted in Russia cementing its control over occupied parts of Georgia while also conquering new territory. The investigation focuses on ethnic cleansing by Russian-backed forces of ethnic Georgians from Russian-occupied territory in Georgia (South Ossetia). The OTP has concluded that there is a reasonable basis to believe that these actions “amounted to the crime against humanity  of forcible transfer of ethnic Georgians under article 7(1)(d).”

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part II

Published on December 9, 2014        Author: 

This is Part II of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights on the proposal to introduce temporary exclusion orders of British citizens suspected of engaging in terrorist activities. Part I discussed the implications of temporary exclusion orders (TEOs) for the UK’s international legal obligations to British citizens. This Part discusses the implications for its obligations to other States.

Responsibility to other States

There is no justification in international law for the exclusion, even temporarily, of British citizens from the United Kingdom. So far as such exclusion engages the legal interests of other States, there may be some scope for agreements with the UK. However, no such agreement can avoid the UK’s international legal obligations towards its citizens – they continue and cannot be outsourced.

The unstated premise of ‘host State’ assistance is, necessarily, the existence of an agreement between the United Kingdom and any such State. The Home Office Impact Assessment on temporary exclusion orders refers briefly and on just a few occasions to ‘host’ States, to describe those which will be expected to carry the burden of the TEO policy, including the risks which presumably accompany harbouring individuals suspected of terrorist associations. The Impact Assessment refers repeatedly to the risk which terrorism might pose to the United Kingdom, but not at all to any such risk to ‘host’ States. Moreover, apart from one reference to discussions with France in relation to juxtaposed controls, neither this document nor any other mentions the necessity for agreements, or considers the elements which might well be considered essential. Read the rest of this entry…

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part I

Published on December 8, 2014        Author: 

This is Part I of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights. This Part discusses the implications of temporary exclusion orders for the UK’s international obligations to British citizens. Part II, to be published tomorrow, will discuss the implications for its obligations to other States.

Introduction

The United Kingdom Government’s recent proposals to introduce a system of ‘temporary exclusion orders’ (TEOs) to be applied to British citizens raise a number of international legal issues, including (a) the responsibility of the State to its citizens; (b) the responsibility of the State to other States; and (c) the responsibility of the State to the international community of States at large when combatting terrorism.

In my view, the proposal for a system of TEOs to be applied to British citizens raises a host of insuperable legal and practical problems.

First, denying entry to the United Kingdom of British citizens suspected of involvement in international crimes or serious crimes of international concern, besides posing potential risks for other States, is likely incompatible with the duties which the State owes to its citizens, with the rights of other States, and with the obligation of the UK to prosecute certain offences (for which concerted international action is required).

Second, at the practical level, there is no reason to suppose that any other State would be prepared to accept the risks incidental to assuming responsibility for excluded British citizens. These risks include the security question – the possible threat to the community of the ‘host’ State – as well as the legal risks which attach to taking responsibility for the individuals concerned, whether or not they are detained. As the United Kingdom now recognizes its duty to admit its citizens on deportation, any potential host State would be well advised to go for this option.

Third, the implementation of TEOs in practice, though speculative at this stage, seems likely also to impede the UK’s ability to fulfil its international obligations to combat terrorism, effectively and in good faith, and the scheme certainly outwith the letter and the spirit of paragraph 6 of Security Council resolution 2178 (2014).

Finally, it is clear, in my opinion, that TEOs will engage the legal rights of those affected, under the common law (including the writ of habeas corpus), possibly under European Union law (cf. the judgments of the Grand Chamber in Rottman v Freistaat Bayern and Zambrano v Office national de l’emploi), and certainly under the European Convention on Human Rights. The ensuing and readily foreseeable litigation will lead to considerable wastage of resources and funds which would be better directed to implementation of the measures identified by the Security Council in resolution 2178 (2014). The TEO initiative, in my view, should be abandoned in the public interest. Read the rest of this entry…

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Why the ICC Should Be Cautious to Use the Islamic State to Get Out of Africa: Part 2

Published on December 4, 2014        Author: 

Leadership accountability or symbolic responsibility?

Using nationality jurisdiction to focus on the accountability of ‘foreign fighters’ is likely to entail a fundamental shift in prosecutorial policy. The OTP has traditionally defended a focus on leadership accountability, i.e. prosecution of ‘those who bear the greatest responsibility for the most serious crimes’. This concept was a cornerstone of prosecutorial strategy during the Ocampo era, and has been applied in early prosecutorial practice (e.g., Prosecutorial Strategy 2009-2012). The OTP has slightly adjusted its strategy in its Strategic Plan 2012-2015 (para. 22) where it recognized the need to gradually build cases upwards. It defended a bottom-up approach based on ‘limitations in investigative possibilities and/or a lack of cooperation and the required evidentiary standards’. It argued that the Office would first investigate and prosecute ‘a limited number of mid- and high-level perpetrators’ in order to ultimately ‘have a reasonable chance to convict the most responsible’. It also noted that the Office would consider ‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’ since such a strategy would ‘in the end be more cost-effective than having unsuccessful or no prosecutions against the highest placed perpetrators’.

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Why the ICC Should Be Cautious to Use the Islamic State to Get Out of Africa: Part 1

Published on December 3, 2014        Author: 

It is tempting to say that the International Criminal Court (ICC) should open a preliminary examination into the violence of the self-proclaimed Islamic State of Iraq and Syria (‘Islamic State’, hereinafter IS). IS has branded itself as an enemy of the West. Its atrocities are attacks on the very foundation of human dignity and conceptions of civilization. They shock the conscience of humankind. Some of the rhetoric denies the very norms and rules on which international law has been built for centuries. Evidence of atrocities is displayed publicly to illustrate power and spread fear. Records indicate that high numbers of nationals of ICC State Parties have been mobilized as so-called foreign fighters, including nationals of Western countries, North Africa (e.g., Tunisia) and the Middle East (e.g., Jordan). The ICC is in a position of vulnerability. It is under perceived pressure to ‘get out of Africa’.

At first sight, all of the factors make IS a perfect target for ICC intervention. Prosecutor Bensouda noted in an interview on 20 November that the Office of the Prosecutor (OTP) would consider options of ICC engagement. ICC assessment is at an early stage, i.e. Phase 1 of preliminary examinations where the OTP makes an initial assessment of all information to analyse the seriousness of information received and identify the crime base. But taking IS crimes to the ICC poses particular problems that deserve careful consideration. Starting it on a wrong premise might compromise some of the very foundations on which the legitimacy of the ICC is based.

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