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Home Archive for category "International Law and Domestic Law"

Saar Papier v Poland: Comparative Public Law and the Second-Ever Investment Treaty Award

Published on February 3, 2014        Author: 

            Jarrod Hepburn is a Lecturer in Law at the University of Exeter, UK.

There has been much discussion in recent years – and in recent weeks on this blog – of the potential for investment treaty arbitration to benefit from a ‘comparative public law’ approach. In brief, the approach conceives of investment treaty arbitration as a form of public law, and calls for tribunals to draw on comparative domestic constitutional and administrative law, as well as other regimes of international public law such as WTO law and human rights law, to give content to the often vaguely-worded standards of typical investment treaties.

In the midst of contemporary enthusiasm for comparative public law, it is tempting to think that the approach is a new one that has been growing in prominence only over the last few years. However, this week brings news from Investment Arbitration Reporter that an UNCITRAL-rules investment treaty award dating from 1995, Saar Papier Vertriebs GmbH v Poland, has been unearthed. Amongst other aspects detailed by IAReporter, the case is particularly notable for its explicit use of domestic administrative law to interpret the provisions on indirect expropriation in the Germany-Poland BIT.

Indeed, this newly-uncovered investment treaty award – only the second ever (currently) known to be rendered, following AAPL v Sri Lanka in 1990 – contains intriguing indications that the comparative public law approach is a practically useful one for investment treaty arbitration. Furthermore, the age of this award raises the tempting view that, rather than being a new development in the field, comparative public law has been there all along.

However, as I discuss below, despite the treaty context of the claim, it is unclear whether the Saar Papier tribunal considered itself to be applying international law. Without this international law framework, it becomes more difficult to characterise the case as an instance of comparative public law at work. Read the rest of this entry…

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Crocodile Tears: The UK Supreme Court’s Broad Definition of Terrorism in R. v Mohammed Gul

Published on November 18, 2013        Author: 

Antonio Coco - PictureAntonio Coco is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

 

On 25 October 2013, in its judgment in the R v Mohammed Gul case, the Supreme Court of the United Kingdom tackled two important issues: the definition of terrorism in times of armed conflict and the relationship between domestic legislation and international rules criminalizing certain behaviours. On both issues, the judgment is rather unsatisfying and may be considered a step back from the stand previously taken by the Court of Appeal in the same case (upon which I commented in the Journal of International Criminal Justice, vol. 11(2), 2013, pp. 425-440, some time ago; see also the excellent post by Kimberley Trapp here on EJIL:Talk!). In particular, the Supreme Court found the terrorism definition in UK law to be both unwise and undesirable but then relied on it to confirm the defendant’s conviction.

The defendant, a law student of British nationality, was accused of having disseminated terrorist publications, an offence under Section 2(3) of the UK Terrorism Act 2006. Actually, his conduct consisted in uploading onto the Internet, and particularly on Youtube, videos of attacks against military targets in Chechnya, Iran and Afghanistan. The videos were accompanied by prayers and praises for the attackers. One legal element of the offence is that the publication – in this case the videos – concerns actual terrorist attacks. The bone of contention here, then, is whether attacks against military targets in the context of non-international armed conflicts (NIACs) can be labelled as terrorist attacks.

The definition of terrorism in UK legislation is contained in Section 1 of the Terrorism Act 2000. It basically foresees three requirements: (1) an act or threat which involves serious violence or danger to the life of persons, serious damage to property, or serious interference with or disruption of electronic systems; (2) the “purpose of advancing a political, religious, racial or ideological cause”; and (3) the fact that the act or threat is “designed to influence the government or an international governmental organization, or to intimidate the public or a section of the public”. The act or threat need not to be designed to influence a government or an international organization or to intimidate the public when it involves the use of firearms or explosives. This means that any threat or use of firearms or explosives motivated by a political or ideological cause is an act of terrorism, as long as it involves serious danger to persons or serious damage to property and regardless of its purpose.

The definition is practically very broad (as recently noted by K.J. Heller). It seems to label as terrorist most acts of warfare in a NIAC, regardless of whether they are lawful or unlawful under International Humanitarian Law (IHL) and whether they are carried out by the armed forces of a State or by a non-State armed group. Indeed, most hostile acts in an armed conflict are likely to cause serious violence to persons or serious damage to property, and all of them are motivated by a political or ideological cause. Arguably, any hostile act in an armed conflict is designed to influence a government or involves the use of firearms or explosives. According to this definition, every person embracing weapons in a NIAC is considered a terrorist. The Prosecution in the Gul case argued that such a wide definition is counterbalanced by the requirement that prosecutions for terrorism are authorized by the Director of Public Prosecution if the activity occurred in the UK, or by the Attorney General if it occurred abroad, thus ensuring that criminal charges are formulated only in the appropriate cases (§ 30). This contention, far from solving the problem, seems to raise even more concerns, as I shall explain below. Read the rest of this entry…

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Call for Papers: ILA Study Group on Domestic Courts and International Law

Published on May 5, 2013        Author: 

The ILA Study Group on ‘Principles on the Engagement of Domestic Courts with International Law’ has issued a call for papers. Those selected will be invited to participate in the discussion of their papers by the Study Group, and will be potentially included in a relevant publication. The deadline for submission of proposals is the end of May. Full details can be found on the Study Group’s website, and the call may be directly downloaded (pdf) here.

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Incorporating UN General Assembly Declaratory Texts into Domestic Law?

Published on February 4, 2013        Author: 

Last week in Canada, with federal MPs returning to Parliament amidst the continuation of countrywide protests by indigenous peoples, an opposition MP introduced a private member’s bill (Bill C-469) to require the Canadian government to ensure that all federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). I’ll state clearly at the outset that this isn’t the first such proposal of its kind, with two other private member’s bills with the same general intent of giving domestic legal effect to the Declaration having been introduced in June 2008 (Bill C-569) and February 2009 (Bill C-328), later reinstated in March 2010. But the discussion that has ensued with respect to enacting domestic legislation to give a non-legally binding declaratory text status and pull within domestic law raises interesting questions for our understanding of the sources of international legal obligation (versus the sources of aspiration and political commitment), as well as concerns about the impact of UN efforts that raise unmet expectations. On the other hand, this may simply strike readers in other jurisdictions as very strange, at least in those jurisdictions where there is no chance that a domestic court would ever rely upon, or even cite, a General Assembly resolution text.

Read the rest of this entry…

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ITLOS order Ghana to release Argentine navy ship

Published on December 17, 2012        Author: 

On 15 December, the International Tribunal for the Law of the Sea (ITLOS) ordered Ghana to release the Argentine military training vessel ARA Fragata Libertad (see oral proceedings). NML Capital, an investment company focused on distressed debt based in the Cayman Islands and owned by Elliot Associates, a US hedge fund, had earlier obtained an order from the Ghana Superior Court of Judicature (Commercial Division) to attach the Libertad moored in the port of Trema to satisfy a judgment by a US District Court for payment on defaulted Argentine bonds. The Libertad was on an official goodwill mission in Ghana’s internal waters at the time of the attachment. Read the rest of this entry…

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Argentina’s Sovereign Debt Default Cases: Some Recent Developments in a Continuing Saga

Published on November 9, 2012        Author: 

More than ten years have passed since Argentina defaulted on its external debt obligations in December 2001. However, the repercussions of the Argentine financial crisis continue to contribute to the development of international law. This brief note provides a short overview of the most recent decisions of different domestic courts arising out of this Argentinian saga: NML Ltd et al. v the Republic Argentina before the US Court of Appeals decided on 26th October 2012 (see reporting here, here, here and here), and the decision of the Ghanaian Commercial Court of 2nd October 2012 (see Opinio Juris, BBC, Al Jazeera,  and elsewhere: here, and here), while reference will be made to the NML v Argentina case, before the UK Supreme Court which was decided on 6th July 2011 (see reporting here and here).

These three cases pronounced on inter-related, but distinct, legal issues (enforcement of foreign awards, state immunity, and non-discriminatory treatment of bondholders) arising out of the Argentine decision to default on its external debt. In combination, they have far-reaching legal implications. It is noteworthy that different courts from around the globe repeatedly ruled in favour of bondholders and against Argentina. Although Argentina in and out of court has invoked political arguments, such as the implications of the court’s approach to the Eurozone crisis resolution efforts (in NML v Argentina before the US Court of Appeals) and the nature of the claimants as ‘vulture funds’ (see here reacting to the Ghanaian Commercial Court ruling; see also Lord Phillips and Lord Collins in NML v Argentina  [2011] UKSC 31, paragraphs 1 and 104-107 respectively), domestic courts consistently prioritise a more legal or stricto sensu approach and promote the Rule of Law in international economic and financial relations.

Background and US Proceedings

After the default in 2001, Argentina made exchange offers to holders of bonds, which were governed by the Fiscal Agency Agreement (FAA). Read the rest of this entry…

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After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Published on October 24, 2012        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Court of Appeal decision overturns a ruling from the High Court of Mombasa, which concluded that, “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” For an excellent analysis of the lower court’s decision, I would point readers to this post on Communis Hostis Omnium.

Read the rest of this entry…

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The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

Published on August 17, 2012        Author: 

Ecuador has announced that it is granting asylum to Julian Assange, the Wikileaks founder, who has taken refuge in the Ecuardor’s embassy in London. Assange sought refuge in the Embassy after the UK Supreme Court ruled a few weeks ago that he may be extradited to Sweden where he is wanted for trial on allegation of committing sexual offences. In this dispute there are some points in the UK’s favour. It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law. That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)). Furthermore, as Matthew Happold pointed out in a previous post, general international law does not provide for diplomatic asylum. Thus, States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case).

However, the UK also faces a number of legal difficulties. The main challenge it faces is that international law (in the form of Art. 22 of the Vienna Convention on Diplomatic Relations) provides that the premises of a diplomatic mission are inviolable and agents of a State may not enter them to perform law enforcement (or other) functions without the consent of the head of the diplomatic mission. So UK agents may not enter into the Ecuadorian Embassy to arrest Assange. The question raised is whether this inviolability is absolute and whether there are any ways in which the UK could get hold of Assange, without violating international law. In particular, may the UK unilaterally terminate the diplomatic status of Ecuador’s embassy by withdrawing its consent for that building to be regarded as diplomatic premises? If the UK did withdraw that consent, would the building then cease to be inviolable such that UK agents could go in to it?

Read the rest of this entry…

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Review of Expert Determinations of the International Swaps and Derivatives Association by Domestic Courts

Published on May 2, 2012        Author: 

A central policy concern since the onset of the Greek debt crisis in 2010 has been whether sovereign debt restructurings trigger credit default swaps (CDS). CDS are insurance-like financial products whereby a protection seller agrees to pay the protection buyer in case of a credit event on a reference entity (in this case Greece) in return for a premium over a defined period of time. The legal framework for CDS transactions is largely standardized. More than 90 percent of CDS transactions are based on the ISDA Master Agreement. As a mechanism for creditors to hedge against the default of a debtor, CDS are financial instruments to redistribute risk (or, according to their defenders, to shift risk onto those entities willing and capable of better bearing such risks). Over the last two decades, CDS on sovereign debtors became increasingly common.

Greece’s debt restructuring in February/March 2012 was the first to be implemented under the umbrella of a large number of CDS (more than 2.5 billion Euros in net terms).  During the implementation phase of the Greek restructuring in March 2012, several interested market participants raised the question whether the Greek restructuring triggered an obligation for the sellers of CDS on Greece to pay. The Determinations Committee (DC) of the International Swaps and Derivatives Association (ISDA) for Europe, Middle East and Africa, the body established by ISDA and given decision-making power under the ISDA documentation to rule on credit events,  found that a restructuring credit event was triggered on March  9 2012.  The parties to CDS have agreed by contract that a credit event occurs only if the competent DC has said so.

As the Greek restructuring in February/March 2012 demonstrated, the consequences of such expert determinations by DCs can be momentous in financial terms not only for the parties to CDS transactions themselves, but also for the broader public and for taxpayers. A case in point is the Austrian bank KA Finanz, the bad bank split off from Kommunalkredit, the comparatively small Austrian lender to municipalities previously owned by Dexia that the Austrian government nationalized at the height of the global financial crisis. KA Finanz had taken over about 500 million Euros of CDS on Greece from Kommunalkredit. As a result of the payouts following the March 9 decision, the Austrian government had to inject another 1 billion Euros into the bank in order to stave off its collapse.

DCs recruit their members from among financial institutions and investment managers, which will often have positions on either side of CDS transactions. In view of their composition and the considerable practical importance of their decisions, concern has arisen that DC members may be tempted to “vote their own book” – i.e. to reach credit determinations in part based on whether the firm is on the buying or selling side of CDS for a particular reference entity.  For instance, two members of the Steering Committee of the Institute of International Finance  which negotiated the restructuring of Greek debt on behalf of private creditors of Greece, are voting members of the DC for Europe (BNP Paribas and Deutsche Bank). They were net sellers of CDS protection on Greece, meaning that both institutions had to pay out to protection buyers when the credit event occured. Given these concerns about independence of DCs and the right to a fair trial in civil matters under Article 6 of the European Convention, it is an open question whether competent domestic courts could in effect review decisions and potentially overturn decisions of DCs. Read the rest of this entry…

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Kiobel: Universal Civil Jurisdiction under international Law

Published on April 26, 2012        Author: 

 Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

In an earlier post, I considered the question of corporate liability under international law in light of the case of Kiobel v Royal Dutch Petroleum (“Kiobel”), which is currently before the US Supreme Court.  Kiobel, a case brought under the Alien Tort Statute (“ATS”), concerns claims that various Shell entities (“the respondents”) planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.

It had been thought that the question of whether corporations may be sued under the ATS would be the central issue before the Supreme Court in Kiobel. However, during oral argument the Justices became preoccupied with the wider issue of the extraterritorial nature of the ATS. In particular, they focussed on the question  whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?  Such was the focus of the Justices on the extraterritorial reach of the ATS that on 5 March 2012, only one week after hearing oral arguments, the Supreme Court ordered briefing and re-argument on:

“[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

Prior to this order, almost all briefing on this issue had been submitted by the respondents and their supporters, who have argued that broad assertions of universal civil jurisdiction by US federal courts may violate international law. In this post I consider some of the counter-arguments that the petitioners and their supporters may seek to raise in response. I suggest that though reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction) may initially seem attractive, that approach is likely to fail. The strongest point that may be put in support of universal civil jurisdiction is that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well. Read the rest of this entry…

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