Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. (more…)

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna.

As promised by my last post on the Sempra Annulment decision, this is a comment on the Enron Annulment decision of 30 July 2010. The decision is fascinating for a number of reasons, but this post shall concentrate on the Committee’s analysis of the “only means” requirement under the customary doctrine of necessity. Whilst highlighting the inherent ambiguity in the application of these words, the Committee’s inquisitorial approach may create more problems than it solves. Accordingly, this post concludes with a rough sketch of logical steps a tribunal may take in applying the “only means” requirements under custom.

I.          Background & Findings of the Committee in the Enron Annulment decision

By way of background on investor-State arbitration claims concerning Argentina, please see my last post. The Enron Annulment Committee concluded that the original award, rendered in favour of the Claimant, was to be annulled due to the Tribunal’s failure to apply the applicable customary law as represented by Article 25 of the ILC Articles on the Responsibility of State for Internationally Wrongful Acts and failure to give reasons (paras. 377-8, Enron Annulment). In particular the Committee concluded that the tribunal’s reasoning of the “only means” requirement under Article 25 was entirely insufficient: (emphasis added)        

369. The first question concerns the legal definition of the expression “only way” in Article 25(1)(a) of the ILC Articles. The Committee notes that the expression is capable of more than one possible interpretation. One potential interpretation is that it has its literal meaning, such that in the present case, the principle of necessity could be relied on by Argentina if there were genuinely no other measures that Argentina could possibly have adopted in order to address the economic crisis. As Argentina points out, there will almost inevitably be more than one way for a Government to respond to any economic crisis, and if this interpretation were correct, the principle of necessity under customary international law could rarely if ever be invoked in relation to measures taken by a Government to deal with an economic crisis. However, that would not mean that it would not be open to a Tribunal to find that this is the correct interpretation, although there are other interpretations that would be equally open to a Tribunal.

 370. For instance, another possible interpretation would be that there must be no alternative measures that the State might have taken for safeguarding the essential interest in question that did not involve a similar or graver breach of international law. Under this interpretation, if there are three possible alternative measures that a State might adopt, all of which would involve violations of the State’s obligations under international law, the State will not be prevented from invoking the principle of necessity if it adopts the measure involving the least grave violation of international law. Under this interpretation, the principle of necessity will only be precluded if there is an alternative that would not involve a breach of international law or which would involve a less grave breach of international law.

 371. A second question not addressed by the Tribunal is whether the relative effectiveness of alternative measures is to be taken into account. In adopting measures to safeguard an essential interest, a State may in practice not be in a position to know with certainty whether a given measure will prove to be effective, and reasonable minds may judge that some measures are likely to be more effective than others. For instance, suppose that there are two possible measures that a State might take in order to seek to safeguard an essential interest. One is 90 per cent probable to be 90 per cent effective to safeguard that essential interest, while the other is 50 per cent probable to be 60 per cent effective. Suppose that the former measure would (subject to the potential application of the principle of necessity) be inconsistent with obligations of the State under international law, while the latter measure would not. Would the State be precluded from invoking the principle of necessity if it adopted the former measure, on the basis that there was an alternative available? Or could the State claim that the measure taken was the “only way” that stood a very high chance of being very effective?

 372. A third question that is not specifically addressed by the Tribunal is who makes the decision whether there is a relevant alternative, and in accordance with what test? Does the Tribunal determine this at the date of its award, when the Tribunal may have the benefit of knowledge and hindsight that was not available to the State at the time that it adopted the measure in question? Or does the Tribunal determine whether, on the basis of information reasonably available at the time that the measure was adopted, a reasonable and appropriately qualified decision maker would have concluded that there was a relevant alternative open to the State? Or does customary international law recognise that reasonable minds might differ in relation to such a question, and give a “margin of appreciation” to the State in question? In that event, the relevant question for the Tribunal might be whether it was reasonably open to the State, in the circumstances as they pertained at the relevant time, to form the opinion that no relevant alternative was open.

  II.        Analysis of the Committee’s Annulment approach to “only means”

 The Committee’s analysis of the “only means” requirement under Article 25 ILC Articles raises three particular points of interest (sections B-D below). However, this post shall quickly examine the background to this requirement. (more…)

Dr. Gentian Zyberi was co-ordinator of the Albanian legal team in the ICJ’s Advisory proceedings on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. He worked for the Defence in the Haradinaj case discussed below.

Introduction

In its judgment dated 19 July 2010 the Appeals Chamber of International Criminal Tribunal for the former Yugoslavia (ICTY) partially quashed the acquittals of Ramush Haradinaj (Kosovo’s ex-Prime Minister and former commander of the Kosovo Liberation Army (KLA) for the Dukagjin zone), Idriz Balaj (former KLA member, commander of the Black Eagles unit), and Lahi Brahimaj (former deputy commander of the KLA Dukagjin Operative Staff, member of the KLA General Staff).  Mr. Haradinaj and Balaj had been acquitted of all charges, while Mr. Brahimaj was found guilty of torture and sentenced to a term of six years’ imprisonment by the Trial Chamber on 3 April 2008. The Appeals Chamber ordered a partial retrial of the case, President Robinson partially dissenting. The President then proceeded to appoint a trial bench composed of Judge Moloto, Judge Hall and Judge Delvoie for this retrial.

Since this is the first retrial ordered by the ICTY in its 15 years of activity – it is surprising that so far this judgment has escaped the careful scrutiny it deserves regarding the legal standard applied and the conclusions drawn by the Appeals Chamber. The Appeals Chamber found that the Trial Chamber had committed a mistake of law by refusing the Prosecutor’s requests for additional time to exhaust all reasonable steps to secure the testimony of two witnesses, while the Trial Chamber had ordered an extension three times, and ordering the close of the prosecution case before such reasonable steps could be taken.  It stated that the Trial Chamber ‘failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity’ which ‘undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.’ (Appeals Judgment, p. 22, par. 49).

Problems with the Appeals Chamber reasoning

This Appeals Chamber Judgment is problematic for a number of reasons, few of which are briefly dealt with below. As the partial dissent pointedly chastises, on the issue of retrial the Haradinaj Appeal Judgment leaves open many more questions than it closes, giving the impression that a policy driven decision-making process disregarded the rule of law, the rights of the accused, and the legal and factual diligence due in handing down a decision of such importance (Partially dissenting opinion of Judge Patrick Robinson, pp. 129-130, par. 32).  It is a pity, because witnesses’ protection in international criminal proceedings and the role of discretion in securing a fair opportunity for the Prosecutor to be heard are unquestionably two extremely important matters for international criminal justice in general.

a) Substitution of the discretion of the Trial Chamber for its own

As the partial dissent of President Robinson points out (Partially dissenting opinion of Judge Patrick Robinson, pp. 116-120, paras. 1-9), the Appeals Chamber did not abide by its own rule that it will not lightly overturn decisions based on the Trial Chamber’s discretion. This is the first of a number of significant flaws and mistakes which weaken the Appeals Chamber’s reasoning. (more…)

Julian Arato is a J.D. candidate and Institute of International Law and Justice Scholar at the New York University School of Law .  His article on  Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences, 9 Law & Prac. Int’l Cts. & Tribs. (forthcoming 2010) is  available here. 

Editor’s Note: Readers may be interested in previous EJIL:Talk commentary on the Lisbon Judgment discussed below. For pieces by Joseph Weiler see here  and here . See also Piet Eeckhout’s  “ The European Union and International Law Under the Treaty of Lisbon“. For analysis of the legal guarantees offered to Ireland to secure ratification of the Lisbon treaty, see Laurent Pech’s  ”The European Union’s Lisbon Treaty: Some Thoughts on the Irish Legal Guarantees“. 

 On first reading the 2009 Lisbon case of the German Constitutional Court appears to hew quite closely to the Court’s reasoning in 1993, reviewing Germany’s accession to the Maastricht Treaty.  Both cases declare that European integration must respect the inviolable core of the German Constitution (Grundgesetz). (Specifically, in these cases, Article 20, entrenching democracy and the rule of law.  See Zitierung: BVerfG, 2 BvE 2/08 vom 30.6.2009, ¶233 [hereinafter Lisbon]; Decision concerning the Maastricht Treaty, 33 I.L.M. 388, 422 [hereinafter Maastricht]). In both cases the Court declares that under the Treaties it retains final say over whether European Law is compatible with the Grundgesetz and is thus applicable in Germany (judicial Kompetenz-Kompetenz).[i] Finally Lisbon, like Maastricht, finds that the Treaty ultimately passes constitutional muster. Thus, at first blush, the Court of Lisbon seems to basically restate its 1993 reasoning.  I want to argue, however, that the Court has substantially sharpened its challenge since Maastricht, elevating much of the Court’s earlier state-centric interpretation of the status of integration under the Treaties to a statement of German constitutional principle. 

I will focus on three ways in which Lisbon represents an advance on Maastricht.  The Court announces: 1) that the Grundgesetz entrenches an absolute and unamendable limit on integration, that State sovereignty as such is inalienable, and thus forbids the delegation of excessive competences, especially Kompetenz-Kompetenz; 2) the Grundgesetz requires the German Constitutional Court to retain final review over the actions of German and European public authorities for possible alienation of, or encroachment on, German State sovereignty (judicial Kompetenz-Kompetenz); and 3) the Court goes about rigorously reviewing the Lisbon Treaty for infringements of German sovereignty in a far more searching manner than it had done in the past.  Leaving little to implication, the Court spells out the consequences of its decision: in the exceptional case where European institutions overstep their enumerated powers, even with the interpretive blessing of the ECJ, the German Court will exercise review and may instruct German authorities not to apply the European law, even if it means engaging Germany’s international state responsibility. 

 1. Constitutional limits to integration: Germany must retain substantial competences. 

            The rhetoric of Lisbon suggests that, like Maastricht, it concerns a democracy review on the model of Solange.  However, I want to suggest that Lisbon is really, at its core, about protecting state sovereignty in light of the expansion of competences at the Union level. In this regard, in 1993 the Court held only that under the Treaty of Maastricht, integration would not yet reach the point of a federal state.  In 2009 the Court went further, holding that full integration into a supranational federal state (federalization) would be in principle forbidden by the Constitution. (more…)

We experienced some technical difficulties yesterday, due to which the blog was inaccessible for the whole day. Our apologies to the readers.

After the excellent recent conference in Cambridge, the next event of the European Society of International Law will be the 4th ESIL Research Forum, to be held on 27-28 May 2011 in Tallinn, Estonia. The call for papers is here. The deadline for the submission of abstracts for the forum’s 15 panels is 15 December 2010, while the selection will be made in January 2011. A further selection of the papers presented will be published in the 2012 issue of the Baltic Yearbook of International Law (Brill/Martinus Nijhoff). A limited number of scholarships to cover travel costs will also be available.

I am sorry to report that Tom Bingham, the former senior law lord, has died Saturday, aged 76. He was on any account the leading judge of his generation – probably, in the words of Philippe Sands writing today in the Guardian, ‘the greatest English judge of the modern era.’ In particular, his contribution to the implementation of human rights and of international law generally in English courts has been immense. He was President and Chairman of the British Institute of International and Comparative Law, and indeed BIICL had recently opened the new Bingham Centre for the Rule of Law. A sad day for our profession.

Our readers, especially those living in The Netherlands, might be interested in attending the forthcoming DOMAC conference in Amsterdam, to be held on 30 September and 1 October. DOMAC is an EU-funded joint project of Reykjavik University, University of Amsterdam, Hebrew University and University College London, and focuses on the actual interaction between national and international courts involved in prosecuting individuals in mass atrocity situations. Readers can find more about it here. The theme of the conference itself is the impact of international criminal procedures on domestic criminal procedures in mass atrocity cases, and the program is available here.

Our readers might be interested in a case note that I have just posted on SSRN on the Sejdic and Finci v. Bosnia and Herzegovina case before the European Court of Human Rights, which I blogged about before. It is forthcoming in the next issue of the American Journal of International Law, and here’s a very brief abstract:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society – discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court’s judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna. This note was prepared before the Enron v. Argentina annulment decision became available at the beginning of August. A note on that case is forthcoming on EJIL: Talk!

On 29 June 2010, the ad hoc ICSID Annulment Committee annulled the initial award in Sempra Energy International v. Argentina, finding that the initial tribunal had exercised a manifest excess of powers. The decision is central to our understanding of necessity in international investment law, and particularly the relationship between necessity under Article XI of the Argentina-US BIT of 1991 and under customary international law. Unfortunately, the committee’s decision leaves much to be desired in terms of its interpretive methodology. The central critique of this post, is the degree of relevance the committee’s decision gives to necessity under customary international law when interpreting Article XI. It also questions the presumptive relevance of necessity under custom as an interpretive tool, when the latter can only apply if the investor does not hold substantive or procedural rights under the BIT.

Background

The investor-state arbitration awards concerning Argentina are, for the most part, centred on the Argentine financial crisis that hit the country in late 2001. As a consequence of the crisis, Argentina undertook specific regulatory measures which liquidated the value of foreign investments (the factual matrix is far more complex, but shall not be entered into here). In the spade of investment arbitrations brought by foreign investors, Argentina has argued that it is not liable under a range of BITs due to the defence of necessity. In regards to US investors, such arguments have fallen under both customary international law and Article XI of the Argentina-US BIT. The latter reads as follows:

‘This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace and security, or the protection of its own essential security interests.’

Thus far six rulings have been made on the operation of necessity under Article XI and custom. (more…)