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Home Archive for category "International Law and Domestic Law"

Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

Published on February 13, 2017        Author: 

The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. Read the rest of this entry…

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Trumping International Law? Implications of the 2016 US presidential election for the international legal order

Published on January 3, 2017        Author: 

Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order Read the rest of this entry…

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Remaking Globalization for the Local: The Real Search for Equality and Diversity in International Law

Published on November 9, 2016        Author: 

From Western liberal democracies in the United States and the European Union, to historically democratic developing countries such as the Philippines, ignored, disenfranchised, and disempowered local communities emphatically made themselves heard in elections and referenda around the world.  For better or for worse, the international economic order will be remade, somehow.  It would be specious and condescending to merely say that this is the rise of “populism” without truly understanding the concerns of local communities who have driven electorates all over the world to reject any form of the “establishment” – whether they be traditional politicians and parties, State apparatuses, international organizations, mainstream media, or multinational corporations.

The supranationalist structures of modern international law’s prominent institutions – the United Nations (UN), the Washington Consensus behemoths such as the World Bank (WB) and the International Monetary Fund (IMF), the World Trade Organization (WTO), the European Union (EU), among others – are premised on deepening inter-State cooperation while still ensuring full respect for the basic UN Charter of the “principle of sovereign equality” of all States. However, the actual power and felt impact of these global institutions on the daily modern lives of individuals, groups, and local communities reveals serious fissures that expose an obvious imbalance between the terms of international cooperation and States’ sovereign equality – from the micromanagement of Greek agencies by EU fiscal managers and inspectors during the worst nadir of the EU’s financial crisis; the enforced austerity and structural adjustment programs of World Bank technocrats harnessing the leverage of the Bank’s conditionality lending to developing countries; the loss of jobs and social dislocations caused to communities throughout manufacturing states in the United States of America when multinational corporations move operations offshore to China or Mexico; as well as the drastically increased competition for resources and the rise in challenges to religious, social, ideological and group identity posed by cleavages within multicultural societies emerging from formerly hermetic communities now overrun by refugees and other immigrants fleeing political persecution, climate change-related natural disasters, and other humanitarian crises.

Restive “Westphalian” political elites push back against the seeming tyranny of the international system and its global institutions, in order to increasingly assert the sovereign prerogative of states and their supposed ‘independence’ from any form of international governance that ultimately erodes any of these elites’ real bases of power. The recent rise of populist, anti-establishment, anti-trade, and anti-internationalist leaders throughout established democracies – from France’s Marine Le Pen, the United States’ Donald Trump and (to a certain extent) Bernie Sanders, the United Kingdom’s Nigel Farage, the Philippines’ Rodrigo Duterte, Venezuela’s Hugo Chavez, among others – is no coincidence. ‘Silent’, faceless, and individually powerless, electoral majorities are clearly voting for leaders who project themselves as best able to roll back the worst excesses of inequality, insecurity, and uncertainty faced by households from an (actual or imagined) unrestrained international order. The rise of an unstable, deep populism throughout liberal democracies around the world does not only express what IMF Managing Director Christine Lagarde calls “a groundswell of discontent” against globalization, but rather, a return to a much harder ‘Westphalian’ version of State sovereignty insulated from the common interests and shared concerns of this century’s community of nations forged and united in the aftermath of the First and Second World Wars.

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International and Domestic Implications of South Africa’s Withdrawal from the ICC

Published on October 24, 2016        Author: 

In the early hours of Friday 21 October 2016, it was revealed that the South African Minister of International Relations and Cooperation had issued official notification of South Africa’s withdrawal from the International Criminal Court (a copy of the instrument of withdrawal can be seen here). This was received by the UN Secretary-General, starting the prescribed 12-month notice period for withdrawal from the Court (Article 127 of the Rome Statute). This announcement came as a shock to many in the legal community in South Africa and abroad. While the South African government had expressed unhappiness with the Court, and had previously threatened withdrawal, there was no public indication that an official decision to withdraw had been taken, nor had any public consultation taken place on the matter in Parliament or elsewhere.

This decision will have significant implications for the legal landscape in South Africa, and likely also for the position of other African States in the ICC. It is also possible that it will lead to the fundamental weakening of the ICC itself. Here I consider various implications of this sudden announcement, both from the domestic South African and international perspectives. First, I address the status of the instrument of withdrawal in international and domestic law. I then look at the impact of withdrawal for the enforcement of international criminal law in South Africa. Finally, I address some possible consequences for the ICC itself.

Is it Legal?

The first question is whether the notice of withdrawal signed by the Minister is lawful, from the lenses of international and domestic law, given that this was a purely Executive act that was not preceded by any form of public or parliamentary consultation, let alone approval. Similar questions arise in the context of the Brexit ‘Article 50’ debate. While it seems that the instrument of withdrawal is likely sufficient to take effect in international law, it is doubtful that the domestic legal requirements have been adhered to. Read the rest of this entry…

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International Law in the Early Days of Brexit’s Past

Published on October 20, 2016        Author: 

Editor’s Note: This post is an adapted version of a short-piece prepared by the author for a policy-report by the think-thank Britain in Europe based at Brunel University London. The report will be presented on the 25th October at a high-level meeting at the British Academy and commented upon by Dominic Grieve, former attorney general of the United Kingdom (2010-2014).

Echoing a widespread sense of almost existential malaise across the ‘invisible college’ of public international lawyers regarding ‘Brexit’, Judge James Crawford of the bench of the International Court of Justice (ICJ), and until very recently the Whewell Professor of International Law at the University of Cambridge, offered a de minimis definition of international law in times of crisis at the opening ceremony of the 12th Annual Conference of the European Society of International Law (ESIL). International law, Judge Crawford said with a fine sense of irony, is ‘all that remains’ when ‘Brexit’ happens, or when Donald Trump wins the U.S.’ Presidential elections.

Internationalists by training and vocation, public international lawyers have not, for their greatest part, been too fond (to put it lightly) of the outcome of the Brexit referendum. But, is this gremial intellectual ‘malaise’ really justified from the perspective of the strictly professional academic interests of the UK academically-based ‘invisible college’ of international lawyers? After all, most international law scholars based in academic institutions across the UK received the news of the outcome of the EU referendum with, at least, a pinch of ironical relief at not having made European Union Law their life’s profession. The awareness that the UK was to be in an even greater need of international legal expertise in the years to come may have added further reassurance to those concerned by their job security and perhaps, overall their life-project in a country which, worn out by years of austerity, had just turned its back on what for all its flaws remains on paper the most advanced value-based and peaceful historical experiment of legal and political integration that a History littered with projects of conquests and subjugation of peoples in the name of religion, imperialist designs and totalitarian ideologies had ever witnessed. International law is, at the end of the day, ‘all that remains’ to replace the law of the European Union as legal vernacular for this country to lay new foundations of its ‘global’ legal relationship with the rest of the world. But, can the UK truly count on some sense of academic loyalty on the part of non-British UK-based international lawyers, many of whom, moreover, feel particularly estranged amidst an extended public rhetoric of ultra-nationalist overtones as EU nationals in a country that will soon not be part of the ‘EU family of nations’? What might appear prima facie to be a question primarily addressed to interrogate the theoretical possibility that many non-British nationals (both EU and non-EU citizens alike) would be rethinking pursuing their academic careers in British universities in a post-Brexit scenario, has, however, gained an unexpected, and slightly disquieting added dimension in recent weeks. According to the British media, indeed:

‘foreign academics from the LSE acting as expert advisers to the UK government were told they would not be asked to contribute to government work and analysis on Brexit because they are not British nationals’

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Joint Series on International Law and Armed Conflict: Rachel VanLandingham on the Procedural Regulation of Detention in Armed Conflict

Published on October 6, 2016        Author: 

The fourth post in our joint blog series arising from the 2016 Transatlantic Workshop on International,’The Procedural Regulation of Detention in Armed Conflict’- by Rachel E. VanLandingham (Southwestern Law School, Los Angeles) is now available on Lawfare.

Here’s a snippet:

vanDuring our conference, I was asked to generate discussion regarding the procedural regulation of detention during armed conflict, particularly during non-international armed conflicts (NIACs). Though lawyers love process, there is a tendency for both soldiers’ and civilians’ eyes to glaze over when they hear the words “procedures,” as they invoke memories of mind-numbing bureaucratic process endured at one’s department of motor vehicles. Yet procedures are vitally important, as they transform values into reality; they are how fairness marries with pragmatism to produce just results. In wartime detention, they ensure exigent detention is reasonable, and work to satisfy fundamental notions of fairness; furthermore, giving process that is due helps reinforce the legitimacy and hence strategic efficacy of military operations. Establishing and following procedures is just as vital an endeavor in ensuring that individuals detained during armed conflict pragmatically should be detained and lawfully can be detained, as it is in ensuring militaries intentionally target military objectives and not civilians.

While detention is internationally recognized as “a necessary, lawful and legitimate”component of military operations, there remain serious legal gaps regarding how detention should be conducted in the most common type of war, those between states and non-state armed groups. While the Geneva Conventions provide robust, detailed rules regarding how and when to detain both civilians and combatants during international armed conflict (IAC), there is no equivalent for NIACs. It is in states’ best interest to remedy this gap, both to avoid repeating past gross abuses and pragmatically, because such procedures are directly linked to operational success.

The issues most relevant to procedural regulation of NIAC detention fall roughly into three categories: the legal authority to detain; standards of (reasons for) detention; and notification plus review mechanisms.

Read the rest over on Lawfare.

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Brexit and International Law

Published on July 4, 2016        Author: 

In earlier posts (here and here) there was a discussion about the different scenarios that might play out following the UK’s vote to exit the European Union. These and other debates have focused largely on the legal implications for the UK and the European Union and the modalities of their future relationship. Yet the UK’s withdrawal from the Union will also have consequences at the international level, especially for the hundreds of international agreements concluded by EU and the UK with third states and international organizations. In this post I will look at some of the international law issues that arise from the UK’s exit from the European Union. The EU is a unique, perhaps even sui generis, international organization, but it is an international organization nevertheless and withdrawal will necessarily gives rise to questions under public international law. An important question in this regard is the fate of the international treaties to which the EU and the UK are party.

The first point of departure are the rules in the treaty establishing the international organization itself, that is, the EU Treaties. The Vienna Convention on the Law of Treaties (VCLT) establishes that a party may withdraw ‘in conformity with the provisions of the treaty’, which in this case is Article 50 of the Treaty on European Union (TEU). Once this has been invoked, the EU and the UK will negotiate an agreement setting out the arrangements for withdrawal. Some have argued that the UK might be able to ‘bypass’ Article 50 TEU using international law, by invoking the Brexit vote as a ‘fundamental change in circumstances’ according to Article 62(1)(a) VCLT. Such proposals should not be taken seriously. This article of the VCLT was deliberately worded negatively, stating that a fundamental change in circumstances cannot be invoked unless two restrictive conditions are fulfilled. These are: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. The International Court of Justice has moreover pointed out “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.” (Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7. para. 104) As Professor Kenneth Armstrong argues:

“there is simply no way that the European Court of Justice would permit the autonomous legal order of the European Union and the specific procedural mechanism of Article 50 TEU to bend to international law in this manner.”

While it is possible that avenues other than Article 50 may be used (for instance, to allow a form of ‘associate membership’) the EU Treaties provide a clear provision that covers the exit of a Member. Article 50 is silent, however, for the most part on the important issues that will face the UK, the EU and the many other states with whom they have legal relations. Read the rest of this entry…

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New Blog: Foreign States in English Courts

Published on July 1, 2016        Author: 

Over the past couple of decades there has been a significant increase in the number of cases in the English courts raising questions of international law. Many of those cases involve proceedings by or against foreign states, or occasionally raising issues involving foreign states even when not a party to the proceedings. I would like to draw the attention of our readers to a new blog Foreign States in English Courts which has been established by my colleague Professor Dan Sarooshi (also of Essex Court Chambers) and Robert Volterra (senior partner of Volterra Fietta) which will assist in keeping on top of this burgeoning case law. The blog is intended to provide concise, informative case summaries of recent and important English court decisions involving foreign States as litigants.  As they say:

This blog aims to highlight the latest, most important case law involving foreign States in the English courts. Our aim is not to provide a complete account of the factual matrix and law decided by each case, but rather to provide the busy practitioner with a quick reference to the most important cases as they emerge.

I am sure the blog will also be of interest to academics and students.

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The Supremacy of International Law? – Part Two

Published on June 3, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part two of two). Part one is available here.

The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.

More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.

Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.

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The Supremacy of International Law? – Part One

Published on June 2, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part one of two).

My topic is The Supremacy of International Law? I chose the subject unwisely, seduced by the question mark into the thought that there would be scope for erudition on a subject that, for international lawyers, is the touchstone of the authority and effectiveness of our discipline but dismissed or simply ignored by scholars and practitioners of national law – quaintly described by international lawyers as “municipal lawyers” – as being at odds with the reality of national constitutionalism or the sovereignty of parliament. Having thought about it further, and had the opportunity to look into the scholarship on the subject over recent years, I have settled for the more modest task of trying to illuminate a little more the dimensions of a debate that has both philosophical and practical resonance.

As you will all no doubt be well aware, the UK at the moment is in the throes of a great internal debate. It is at root a debate about identity – whether we are and should be part of Europe or are a mid-Atlantic island with a grand history that should see its future role as a stepping-stone, bridging the western cultural divide. It is about who we are and who we want to be, about harkening back and aspiration in an uncertain world.

But, once we scratch the surface, it is a debate about laws, about where they are made and who has the last say. It is about democracy in law, about the connection between the law and those whom it governs. It is not cast in these terms in the public debates and the fear mongering of politicians but it is in substance a debate about the supremacy of international law.

The international law in focus in this debate is an international law of a special kind, most directly in the frame is European Union law, with its doctrines of supremacy, direct application and direct effect, but following close behind is the Strasbourg law of the European Court of Human Rights that, in living instrument fashion, has turned a treaty into a constitution. The font of both is found in traditional instruments of international law, inter-State treaties of a standard setting and coordinating kind. Both have come a long way since the entry into force of their texts, having shaped and fashioned a community on the continent of Europe that looks to some at times more like a federal society than a collection of nation States. And the issue in both cases is who makes the laws and who has the last say. Most acute of these is who has the last say as there is an appreciation, accurately so, indeed an apprehension (in both senses of this word), that, once the ink on the constitution is dry, it is courts that fashion the society that develops thereon. Read the rest of this entry…

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