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Consent and Customary International Law

Published on August 4, 2014        Author: 

I am pleased to see Professor Guzman and Jerome Hsiang being among those authors who admit that one cannot construct a plausible and coherent CIL theory without a thorough conceptual clarification. In their short article in EJIL Vol. 25:2 (2014), they are focusing on consent and CIL, particularly on the tension between the principle of consent prevailing in international law and non-consensual law-making in the field of CIL. They do not perform an analysis on the concept “consent”, but try to answer the question of why rationally self-interested states should accept the existence of non-consensual customary rules in international relations. I am willing to accept some of their claims or conclusions, as follows. (i) There exist some weak, limited forms of non-consensual rule-making in contemporary international law. (ii) Customary rules are the output of such rule-making. (iii) A non-consensual customary rule, by its content and nature, usually provides great benefits to most of the states or the whole international order and relatively small costs to one or some states.

Of course, all this is the rejection of the so-called consent theories of CIL. It is no surprise. In his excellent, seminal article of 2005 (Saving Customary International Law), Guzman has outlined the basis of a modern, non-objectivist, belief-based CIL theory within the framework of his rational choice doctrine. A belief-based CIL theory is not compatible with consent theories. I also have doubts about that a consent theory could adequately explain how CIL really works. However, three caveats are in order here.

First, consent theories of CIL put up a stout resistance. They are supported by the requirement of “acceptance” in the text of Article 38(1)(b) of the Statute of the International Court of Justice, although they encounter difficulties with adjusting acceptance to opinio juris. For example, Olufemi Elias and Chin Lim, who worked out a modern, refined and flexible version of CIL consent theories (The Paradox of Consensualism in International Law), simply conflate the two concepts, which is problematic from the theoretical angle. Read the rest of this entry…

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The Nature of Investor’s Rights under Investment Treaties: A Rejoinder to Martins Paparinskis

Published on October 31, 2013        Author: 

Editor’s note: This is the final installment in the discussion begun last week of Martins Paparinskis’s EJIL article, “Investment Treaty Arbitration and the (New) Law of State Responsibility“.

Martins’ reply to my comments on his EJIL article highlights a number of challenging issues regarding the ongoing debate over the direct or derivative nature of investors’ rights under international investment agreements (IIAs). To summarize our disagreement: Martins, on the one hand, views the derivative rights approach “as only one of a number of plausible ways of articulating international law arguments about investment law”; on the other, I remain strongly reluctant towards this polyphony of plausible  articulations, and rather find that the direct rights model is unconvincing.

Martins questions, first, whether the practice of NAFTA Parties indeed favours the derivative model; second, whether international law provides for causality (or even correlation) between the nature of obligations under treaties and the nature of rights derived thereunder; and, third, whether indeed the HICEE v Slovakia award explicitly adopts the derivative rights model. By way of rejoinder to Martins’ reply, I will address the first point separately, and the second and third points jointly. Read the rest of this entry…

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Reply to Howley and Howse

Published on October 24, 2013        Author: 

I am grateful to Jessica Howley and Rob Howse for their thoughtful comments. This post replies to each of their responses.

My response to Jessica Howley will focus on the first and third questions that both, albeit in different ways, challenge my argument that choice is the right criterion for distinguishing the third party model from other approaches. In the first question, Howley wonders whether public interest underlying international human rights could not provide a better explanation for the human rights/investment law distinction than consent. In the third question, she identifies the choice of an individual to become a rights-holder as also present in the diplomatic protection model, thus blurring the distinction between those approaches. I am grateful to Howley for raising questions about the limits of third party model and will answer them in turn, after first briefly outlining my general argument.

Law of third parties and choice

It seems to me that one is on fairly safe conceptual and legal grounds when discussing the tension between elements of inter-State and investor-State dispute resolution in investment treaty arbitration. In my response to Gourgourinis, I sketched some aspects of this tension, and it has been addressed in leading legal writings (in particular by James Crawford ((2002) 96 AJIL 874, 887-8) and Zac Douglas ((2003) 74 BYBIL 151, 160-94). The LaGrand judgment of the International Court also provides some guidance on the criteria for identifying the presence of individual rights in treaty instruments ([2001] ICJ Rep 466 [77]).

My article suggests that that the image of a spectrum of different expressions of inter-State and individual-State elements in the structure of international dispute settlement regimes is right but may be incomplete. A triangle provides a more accurate portrayal of the legal dynamic of investment law. The three corners of the triangle are human rights, diplomatic protection, and third party rights. International law permits creation of rights of non-treaty parties under two regimes – rights of individuals and rights of third parties – that are in many ways as distinct from each other as they are from the inter-State diplomatic protection regime. The distinction between those models is not intuitively clear, but in technical terms the most distinctive element of the law of third parties is a requirement of consent as a precondition for the creation of rights (VCLT arts 34-37). My thesis is that consent and the choice to provide consent are instrumental for the law of third parties but not the law of human rights and law of diplomatic protection, and therefore would provide a convenient analytical perspective for discussing investment law. Howley questions both aspects of the distinction, and I will respond to these arguments in the following paragraphs. Read the rest of this entry…

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Reply to Gourgourinis

Published on October 24, 2013        Author: 

I am very grateful to Anastasios Gourgourinis, Robert Howse, and Jessica Howley for their remarks about my EJIL article. I hope that my responses will enable me to clarify my position (and thinking) on the aspects of my argument with which each commenter has engaged. Since there is very little overlap between their comments, I will address them in turn, responding to Gourgourinis in this post and then to Howley and Howse in the next.

Gourgourinis makes a strong argument in favour of derivative rights (which the article calls ‘delegated rights’), suggesting that (1) State practice favours the derivative model, (2) individual rights of the human rights character derive from multilateral obligations, and investment law is not multilateral in that sense, and (3) the HICEE v Slovakia award explicitly adopts the derivative rights model. I will take the first and third argument together, first explaining my basic thesis to ensure that our arguments do not pass each other like two doomed ships in storm.

Investment law as progeny of three regimes of international law

My basic thesis is that investment protection law partly borrows and partly diverges from three different regimes of public international law (international human rights law, law of treaties on third parties, and inter-State law of diplomatic protection). Law-makers and adjudicators will conduct the debate within the broad contours of the following propositions. They will debate the appropriateness of analogies; the content of particular rules flowing from analogies; the appropriateness of the particular rules and other related rules; and the appropriateness of analogies reconstructed back from those rules, etc. It remains to be seen how the issue will develop, both in terms of State practice and arbitral decisions, and doctrinal evaluations. At the moment, each perspective seems to dominate particular aspects of the system without being excessively concerned about internal inconsistency. The pragmatic ‘without prejudice to the broader principle’ practice may continue, or a particular perspective may gain dominance, or one perspective could provide a starting point that is tweaked by introduction of special rules, possibly borrowed from other perspectives. To avoid any possible doubt, this is not an argument against delegated rights, but an argument that views delegated rights as only one of a number of plausible ways of articulating international law arguments about investment law. Read the rest of this entry…

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Interpreting Fair and Equitable Treatment within the Evolving Universe of Public International Law

Published on October 23, 2013        Author: 

Rob HowseRobert Howse is Professor of International Law at New York University Law School.

When a tribunal interprets a treaty it does so not in a vacuum or as an isolated decider, but as an adjudicator embedded in a large and dynamic universe of public international law—as Bruno Simma forcefully articulated in his separate opinion in Oil Platforms. Yet in recent years there have been decisions of investor-state tribunals, fortunately not in the mainstream but still much commented on, that adopt a much narrower, hide-bound approach to fair and equitable treatment, the most egregiously awful arguably being Glamis Gold v. United States, where the tribunal froze the meaning of fair and equitable treatment as the content of the standard of diplomatic protection of aliens in the early 20th century. By tracing the reciprocal influences flowing back and forth between investment treaty law and other areas of public international law, Martins Paparinksis’s article provides a good antidote to the misguided thinking behind rulings like Glamis. This thinking is based upon a number of assumptions. One is that investment treaties simply import through fair and equitable treatment a self-contained regime of diplomatic protection, rather than the fair and equitable treatment norm adapting concepts from diplomatic protection to a new context of investor protection, which operates not through espousal but direct access to dispute settlement by investors. Second is the strong presumption against customary law having evolved through the thickening jurisprudence of international and regional courts and tribunals. Third is the very notion that the law of diplomatic protection, or the minimum standard of treatment, is a kind of self-contained regime unaffected by developments in other areas of international law, whether human rights or, for example, various transparency and administrative fairness-type provisions in multilateral and regional economic treaties. All of these dubious assumptions are in effect challenged by Martins’ rich and textured analysis of the fair and equitable treatment standard within the large complex universe of public international law. As Martins shows, although some treaties may explicitly restrict the kind of normative material available for interpretation, in general the ambit is defined broadly, if one takes together Article 31 of the VCLT and Article 38 of the ICJ Statute. Because fair and equitable treatment is a treaty-based obligation, the normative material relevant to defining the standard need not itself have the status of custom. In any case, it is well established that in the modern universe of international law there is a dynamic interplay between custom, conventional law, even soft law. This reality makes the Glamis Gold approach seem particularly sterile or arid.

Also worth further thought in the context of Martins’ article is an issue he raised in his exchange with Anthea Roberts in the recent EJIL:Talk! discussion of his book:  I agree with Martins that one should not lightly have reference to municipal public law as a source for the content of fair and equitable treatment, certainly not as a ceiling. To ensure fair and equitable treatment of an investor it is not enough that a host state have laws on the books that appear to be consonant with public law in other states.  Evaluating the standard set by municipal public law would involve assessing not only the standard implicit or explicit in formal statutes but the actual workings of the system, in other words, administrative practice. Also, even between countries such as the US and Canada there are quite significant differences with respect to how administrative discretion is controlled by judicial review and other vital mechanisms.  The risk of going down the path that Roberts suggests is that the fair and equitable treatment standard could become the lowest common denominator of public law and administrative practice among a certain select group of states.  Another risk is that a host state might be considered to have discharged its state responsibility by having a working system of public law with certain formal guarantees, even if the investor is egregiously mistreated in the process. The fair and equitable treatment standard must, as the word treatment implies, be applicable not only to the laws of the host state, but also to the specific behavior of the host state towards the investor in question.  Just as with human rights law, investor protection ought to provide relief against exceptional abuses even within systems of law that are not formally deficient.  As Martins shows in his article, public international law as it is evolving in diverse areas provides adequately fertile normative material for an evolving international standard of fair and equitable treatment.

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The Nature of Investors’ Rights: A Reply to Martins Paparinskis

Published on October 23, 2013        Author: 

Jessica HowleyJessica Howley is partway through a DPhil at Magdalen College, University of Oxford.

 

In his EJIL article, Martins Paparinskis outlines how the rules of State responsibility, developed in the interstate context, apply in claims between individuals and States in the field of investment law (p 619). He proposes three alternative views one might take of the nature of the ‘rights’ accorded to investors under investment treaties: that they are ‘direct rights’, similar to those found in the regime of human rights (p 622-623); ‘third party rights’, akin to those accorded by treaty parties to third states under Article 36 of the Vienna Convention on the Law of Treaties (p 624); or ‘delegated rights’, where the individual is an agent exercising rights that belong to their home State (p 625).

Paparinskis details the implications of each approach to investors’ rights for various aspects of State responsibility, including for the purposes of reparation, the application of circumstances precluding wrongfulness and the implementation of responsibility (p 619-620), elucidating the practical effects that flow from adopting a particular perspective on investors’ rights. He expressly does not seek to reach a definite conclusion on which of these is the correct approach to take (p 626). He does, however, offer some thoughts on the appropriateness of relying on the human rights paradigm in the investment context.

While noting the functional similarity between many of the rights in the investment and human rights fields, Paparinskis argues (and affirms in this EJIL: Talk! post and a forthcoming chapter available here) that human rights and investment law differ in the key respect that investors choose to become investors, with investment law protections designed to entice an investor to invest in a particular State (p 623). Conversely, one falls under the protection of a given human rights regime not as a matter of choice but simply by virtue of being human. This leads the author to suggest that rights in investment law might be ‘better captured’ by viewing them through the lens of third party rights, rather than from a human rights perspective (p 624).

The purpose of this post is to query the extent to which the choice of the investor provides a useful way of thinking about which of the three models of investors’ rights is most appropriate. Read the rest of this entry…

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The Nature of Investor’s Rights under Investment Treaties: A Comment on Paparinskis’ “Investment Treaty Arbitration and the (New) Law of State Responsibility”

Published on October 22, 2013        Author: 

Gourgourinis_photoDr Anastasios Gourgourinis is Lecturer in Public International Law at the National and Kapodistrian University of Athens Faculty of Law, and Research Fellow at the Academy of Athens.

Martins Paparinskis’ EJIL Article argues that the conceptual challenges faced by contemporary investment treaty arbitration can be effectively addressed if the regime is not viewed in isolation from its progeny, i.e. international human rights and consular law, the law of treaties and the law of diplomatic protection. The discussion in Paparinskis’ piece is essentially centred on the debate regarding the character and nature of investors’ rights under international investment agreements (IIAs), i.e. either as direct or derivative rights. Paparinskis address the nature of investors’ rights under IIAs from the terminologically different, but contextually similar, lens of the models of direct rights, beneficiary rights, and agency. He explicitly declines to take a firm position regarding which of these models is the most plausible one, but he appears, at least in my eyes, more prone to side with the direct rights model, especially in view of the analogies with human rights law (see also his analysis here). This is where we will have to part ways, and in this post I take issue with this, largely drawing from my chapter on the direct/derivative rights debate.

Below, I take issue with the idea that an investor may be considered as a holder of direct rights akin to human rights. Although Paparinskis does a tremendous job in drawing normative parallels between the two regimes, I remain of the  view that the very different nature of obligations derived from human rights instruments and IIAs cautions against such an approach, and rather supports the derivative model of investors’ rights. The debate over the direct or derivative nature of investors’ rights received full treatment in the seminal BYBIL article by Zachary Douglas and evidence that it is  ongoing and growing, is manifested by the fact that during the recent 2013 ILA Regional Conference in Sounion, Greece, three papers touching upon these and similar issues were presented (see here, here and here). Read the rest of this entry…

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Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 

Martins PaparinskisI am grateful to EJIL:Talk! for hosting the discussion of my article and chapter. I am privileged to have Anastasios Gourgourinis, Jessica Howley, and Robert Howse as discussants. In the following paragraphs I summarise the main arguments made in the article and the chapter.

The starting point of the argument is that investment law partly borrows and partly diverges from pre-existing regimes of international law. An interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the meaning of particular terms, broader systemic structures, and underlying secondary rules. In order to situate investment protection law within the broader international legal order, an interpreter might draw upon multiple legal techniques from established legal regimes. Within the four corners of international law reasoning, the models of direct rights, beneficiary rights, and agency are the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection. A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law.

The EJIL article under discussion examines whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In yet other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The forthcoming chapter applies the same analytical perspective to the law of treaties, examining rules on interpretation and treaty-making through the lenses of other regimes of international law. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.

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Discussion of Martins Paparinskis’s Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 

This week we will be hosting a discussion of Martins Paparinskis’s EJIL article, Investment Treaty Arbitration and the (New) Law of State Responsibility, and his related forthcoming chapter, Analogies and Other Regimes of International Law. Martins  is a Lecturer in Law at the University College London and a book review editor of the Journal of World Investment and TradeHis article  will be subjected to careful scrutiny this week by Anastasios Gourgourinis (Lecturer, National and Kapodistrian University of Athens), Jessica Howley (DPhil Candidate, Oxford), and Robert Howse (Professor, New York University). We are grateful to all four for agreeing to have this discussion here.

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Apartheid in Occupied Palestine: A Rejoinder to Yaffa Zilbershats

Published on October 2, 2013        Author: 

 

 dugardJohn Dugard (pictured left) is Emeritus Professor of John ReynoldsInternational Law at the University of Leiden and Honorary Professor in the Centre for Human Rights at the University of Pretoria. John Reynolds (pictured right) is the EJ Phelan Fellow in International Law at the National University of Ireland, Galway.

‘Upper Nazareth is a Jewish city and it’s important that it remains so’, wrote its mayor Shimon Gapso last month. ‘If that makes me a racist’, he continued, ‘then I’m a proud offshoot of a glorious dynasty of racists’. Gapso was responding to criticism he had received over his call for the preservation of Jewish Israeli demographic superiority over Palestinians in his jurisdiction. He sought to undercut such criticism by situating his views as merely symptomatic of the core tenets of Zionism. His position, he suggested, is no more or no less racist than Herzl or Ben-Gurion and the pioneering Jewish settlement—with inevitable removal of Palestinians—that they espoused. While Gapso makes this admission of racism rather facetiously, so as to expound the ‘hypocrisy and bleeding-heart sanctimoniousness’ of his liberal Israeli critics, his comments go to the heart of Israeli policy vis-à-vis the Palestinians historically and contemporaneously: colonisation, displacement, and segregation. In pointing to security issues and the diverse political, socio-economic and cultural needs of the two population groups, Gapso essentially reproduces the vision of “separate development” that was central to apartheid in southern Africa. Apartheid was presented by its Afrikaner architects as not about oppression or denial of self-determination, but “separateness”.

Gapso’s comments mark the latest round in an ongoing debate over the role of ethno-racial dynamics in Israeli policy-making, and the nature of Israel’s institutional and legal regimes as they apply to the AbuDisWallPalestinians. They came in the context of the relationship between Israeli authorities and Palestinian citizens inside the state’s borders. They are equally and arguably more prescient when considered in relation to the occupied Palestinian territories, where the narrative of an Israeli apartheid-like regime has gained particular prolificacy in popular and political discourse since the 1990s. More recently, the relevance of the normative prohibition of apartheid as articulated through the specific language of international law has come to the fore. Our article in the current issue of the European Journal of International Law explores international law’s engagement with questions of race, racial discrimination and apartheid. It considers the nature of Israel’s occupation of the Palestinian territories in that light, and concludes that the regime of discrimination and segregation imposed in the occupied territories is of a sufficiently institutionalised nature to be qualified as a system of apartheid. (photo: Israeli wall at Abu Dis, credit)

Yaffa Zilbershats’ reply  to our article roots itself in the familiar refuge of Israeli exceptionalism, and parrots two standard talking points of Israeli government lawyers. The first is that as a mere occupying power, Israel’s behaviour in the Palestinian territories is not susceptible to the same standards by which a sovereign state would be judged. The second is that because Palestinians have committed acts of “terror”, Israel’s behaviour is not susceptible to the same standards by which a sovereign state would be judged. Both of these points are supported by almost exclusive reference to Israeli court decisions.

Occupation and Apartheid: “Apples and Oranges”

Zilbershats suggests that because Israel occupies the Palestinian territories without having formally annexed them (disregarding the fact that in the case of East Jerusalem it has done so), the state is bound there only by the laws of armed conflict. Israel can exempt itself from other spheres of international law, including, apparently, the prohibition of apartheid; its status as a jus cogens norm and explicit inclusion in the laws of armed conflict themselves notwithstanding. Zilbershats argues that, by asserting that regimes of apartheid and occupation can (and do) occur simultaneously, our article is guilty of ‘comparing apples and oranges’.

Apart from erasing several decades of Namibian history, this claim obscures the present reality that Israel’s colonisation of Palestinian territory goes far beyond the image of a temporary occupation that Zilbershats conjures up. With this “temporary” situation now approaching fifty years as the status quo and the settlement enterprise continuing apace, it is not merely a regime of belligerent occupation but also one of expansionary settler colonialism. Read the rest of this entry…

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