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Home Archive for category "Treaty Law"

Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…

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The Assembly of State Parties to the International Criminal Court Decides to Delete Article 124 of the Rome Statute

Published on April 12, 2016        Author: 

A little noticed but still significant event during last year’s Assembly of State Parties of the International Criminal Court (ICC) was the decision to delete article 124 of the Rome Statute. Article 124, titled “Transitional Provision”, reads as follows:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

The gist of article 124 was to allow State Parties, upon becoming Party to the Rome Statute, to preclude the Court from exercising jurisdiction over war crimes (article 8) for a period of seven years. Only France and Colombia ever made use of article 124, and each country did so for very particular reasons, which I will not elaborate further here. Suffice it to note that France withdrew its declaration under article 124 in 2008 and that the Columbian declaration made in 2002 expired in 2009. Still, for a court that prides itself on permitting no reservations, no statute of limitations, and no immunities from prosecution, even for heads of state, many have considered article 124 as an inappropriate exemption from the Court’s quintessential principle that there shall be no impunity for any of the crimes under its jurisdiction.

The deletion of article 124 is important not only in its own right, but also because of how it occurred. State Parties deliberated extensively about whether to adhere to the standard amendment procedure outlined in article 121 or if a simple decision by the Assembly would suffice. The result of this debate can be indicative of how States will approach procedural questions of a similar nature in the future, not least when the Assembly in 2017 moves to activating the crime of aggression (on which see this post). Read the rest of this entry…

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Palestine at the Gates of the Peace Palace: The long and windy road towards Palestinian membership in the Permanent Court of Arbitration

Published on April 5, 2016        Author: 

To Be or not to be a Party …

It took two lengthy sessions of the Administrative Council of the Permanent Court of Arbitration (‘PCA’ ) before it decided, on March 14, 2016, to confirm that the ‘State of Palestine’ is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) and hence also a member of the PCA. The decision was made by vote, for the first time in the long history of the PCA, with 54 states voting in favor and 25 abstentions. Notably, the parallel accession of Kosovo is still ‘under review’. This development raises a whole set of legal issues ranging from the role of the depositary in situations of contested statehood, to issues of treaty interpretation, as well as finally the legal consequences of Palestine now having become a member of the PCA.

In order to understand the legal implications of the decision, it is necessary to recall some of the most important steps that led to its adoption. Both Palestine and Kosovo, had within a short space of time (namely on 30 October 2015 (Palestine) and on 6 November 2015 (Kosovo)), submitted their accessions to the 1907 Convention. These accessions were acknowledged by the depositary, the Dutch government, on 17 November 2015 on its depositary website. The website also indicated that the said Convention would enter into force for Palestine on 29 December 2015 and for Kosovo on 5 January 2016, a move that was (somewhat prematurely, as we will see) welcomed by the Kosovo Ministry of Foreign Affairs. Upon the request of Serbia, the Administrative Council of the PCA then met on January 4, 2016, i.e. just one day before the Kosovar accession was supposed to become effective, and decided to keep the situations of Kosovo and Palestine ‘under review’, which in turn led the Depositary to ‘strike out’ the accessions of Palestine and Kosovo, with both of them then listed in the following manner:

“Parties (5 January 2016):

Party                            Ratification                  Entry into force

Kosovo                        06-11-2015 (T)           05-01-2016                

Palestine                       30-10-2015 (T)           29-12-2015 

This in turn then led to a request by a group of Arab States for yet another urgent meeting of the Administrative Council of the PCA. This meeting was supposed to deal with the status of Palestine vis-à-vis the 1907 Convention, given that by the time the above-mentioned decision of January 4, 2016 had been made to keep the situations of Kosovo and Palestine ‘under review’, Palestine had already become a contracting party of the Convention with effect from December 29, 2015. Hence, the action by the depositary had amounted, as far as Palestine was concerned, to a de facto suspension of a pre-existing treaty membership. Read the rest of this entry…

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New German Constitutional Court Decision on “Treaty Override”: Triepelianism Continued

Published on February 29, 2016        Author: 

By Court order of decision of 15 December 2015 (2BvL 1/12), published only recently, the German Constitutional Court (second Senate) has confirmed the practice of treaty override in tax law. The euphemism “treaty override” means that the German legislator adopts a law which violates a prior international treaty (often a treaty on double taxation). The Federal Tribunal on Finances (Bundesfinanzhof) had doubts about the constitutionality of this practice. It was convinced that a recent amendment of the Income Tax Act which is incompatible with a German-Turkish dual taxation treaty of 1985 is unconstitutional, exactly because it violates the treaty.

If in a pending judicial proceeding, a German court is convinced that a legal provision, which it needs to apply to resolve the case under scrutiny, is unconstitutional, that court must stay the proceeding and pose a reference question on the law’s constitutionality to the German Constitutional Court (Art. 100(1) German Basic Law). Such a reference procedure guarantees that the Constitutional Court retains the monopoly for declaring a law unconstitutional, and is thus a hallmark of the concentrated system of constitutional control in Germany.

Translation into constitutional questions
The judicial proceeding under Art. 100(1) Basic Law is available only for questions of constitutionality, not for questions of compatibility with international law. This worked, because the courts involved in fact “translated” the question of the relationship between international law and domestic law into a constitutional law question of the separation of powers and of constitutional principles: rule of law versus democracy.

The Federal Tribunal on Finances deemed the treaty override unconstitutional for violation of the rule of law and of the German constitutional principle of “friendliness towards international law” (“Völkerrechtsfreundlichkeit”).

The Constitutional Court did not follow this view. It opined that the constitutional principle of democracy (which includes the principle of discontinuity of parliament following elections) demands that the German Parliament is free to change its mind and to make or amend a law even if this violates an international treaty which had been ratified by a previous Parliament (Order of 15 Dec. 2015, paras 53-54). Read the rest of this entry…

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The Paris Climate Agreement: An Initial Examination (Part III of III)

Published on February 8, 2016        Author: 

Editor’s Note: This is the last post in a series (see Part I and Part II) featuring Professor Jorge Viñuales’ analysis of the landmark December 2015 Paris Agreement. Professor Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

Implementation techniques

The main innovation of the Paris Agreement lies in its implementation techniques and, particularly, the ‘enhanced transparency framework for action and support’ established by Article 13. This mechanism, the first of its kind in global environmental governance, is the embodiment of the approach, followed since the launching of the ADP in 2011, according to which emission targets would be set domestically and measuring, reporting and verification (MRV) would be organised at the international level. It is, of course, not the only technique, as the Agreement also contemplates many others. For analytical purposes, I will make a distinction between information-based techniques, facilitative techniques and the management of non-compliance.

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The Paris Climate Agreement: An Initial Examination (Part II of III)

Published on February 8, 2016        Author: 

Editor’s Note:  This is the second in a series of three posts that continues Professor Jorge Viñuales’ analysis of the landmark December 2015 Paris Agreement.  Professor Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

In yesterday’s post, I examined the context leading to the Paris Agreement, its basic legal structure and goals. ‘The Paris Agreement is appended as an Annex to the ‘Adoption of the Paris Agreement’, Draft Decision -/CP.21, 12 December 2015, FCCC/CP/2015/L.9 (‘Decision’). Today’s post proceeds to scrutinize the Agreement’s three main action areas.  Tomorrow’s final post discusses the implementation techniques applicable in the Agreement, and offers concluding observations.

Action areas

The Paris Agreement sets three main action areas, two of which – mitigation (Articles 3-6) and adaptation (Article 7) – are given particular weight, whereas the third – loss and damage (Article 8) – is more circumscribed, and perhaps even confined within narrow bounds.

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The Paris Climate Agreement: An Initial Examination (Part I of III)

Published on February 7, 2016        Author: 

Editor’s Note:  This is the first in a series of three posts analyzing the landmark December 2015 Paris Agreement, authored by Professor Jorge Viñuales, the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

Less is more, at least sometimes. The 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (‘UNFCCC’) resulted – against all odds – in the adoption of a ‘Paris Agreement’ (hereafter, “Decision”) which will be opened for signature on the 22 April 2016. (The Paris Agreement is appended as the Annex to the Decision.) The Paris Agreement is not perfect, but is more than many of those who have followed the climate negotiations over the years realistically expected.  My purpose here is not to provide a comprehensive analysis of this instrument. That will come in time, once the new Ad Hoc Working Group on the Paris Agreement (‘APA’) but also a number of other Party and ‘non-Party stakeholders’ (Decision, paras. 134-137).  have provided further details as to both the modalities of the different mechanisms introduced by the Agreement and the variety of nationally determined contributions and other actions pledged in connection with mitigation and adaptation. However, from the perspective of a lawyer and addressing an audience of lawyers, I thought it would not be without interest to provide an annotated snapshot of the legal architecture of the Paris Agreement.  Part I of these posts focus on the context that led to the adoption of the Paris Agreement and provides an original schematic of the Paris Agreement and the goals of the Paris Agreement.  Part II tomorrow will set out the three main components of the Paris Agreement’s architecture and offers concluding observations.  Finally, Part III will discuss the implementation techniques of the Agreement and offer concluding observations.

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Somalia Ratifies Convention on the Rights of the Child

Published on November 2, 2015        Author: 

A standard trope when teaching multilateral human rights treaties has been to point to the Convention on the Rights of the Child as having achieved near-universal ratification, with only the United States and Somalia not having ratified it (at least among those entities generally recognized to be states under international law). Well, that trope now has to come to an end – on 1 October Somalia officially deposited its instrument of ratification with the UN Secretary-General, having completed domestic ratification processes earlier in the year. That leaves the US as the only state in the world not to have joined this treaty, a somewhat more unenviable position than before, one could say.

Unfortunately, upon ratification Somalia also made the following reservation: “The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia.” The three enumerated articles deal with the freedom of thought, conscience and religion, and the protection of children deprived of their family environment, but the reservation extends to the Convention as a whole. Human rights bodies generally regard Sharia reservations to be incompatible with the object and purpose of human rights treaties (as do a number of other states parties), while in its work on reservations to treaties the International Law Commission objected to such reservations on the grounds of their impermissible generality and vagueness (see guideline 3.1.5.2 and commentary; see more the EJIL symposium on the ILC’s guide to practice on reservations).

In any event, the CRC is now just one step removed from becoming the only treaty to achieve universal ratification in modern times, other than the 1949 Geneva Conventions – but bearing in mind the internal politics in the US Senate and the 2/3 majority required there, that last ratification probably won’t come anytime soon.

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Trade Agreements, EU Law, and Occupied Territories – A Report on Polisario v Council

Published on July 1, 2015        Author: 

Speaking of occupied territories, an interesting judgment should soon come from the General Court of the European Union (GC) in Action for Annulment Frente Polisario v Council (Case T-512/12), a case with fascinating international law aspects. I attended the hearing last week and think it warrants a report.

Frente Polisario is a national liberation movement (NLM) that claims sovereignty for Western Sahara – the area between Morocco and Mauritania that has been on the UN list of non-self-governing territories since 1963, and in 1975 was the subject of a fairly inconclusive ICJ Opinion. The Frente sees Morocco as an occupying power, and challenges the EU Council decision approving the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. Given that the 2010 Agreement is a development of the 2000 EU-Morocco Association Agreement, the decision will have significant implications for the application of the latter agreement, and may thwart negotiations of the so-called “Deep and Comprehensive Free Trade Agreement”.

These agreements are all silent on the question of what constitutes Moroccan territory. However, Frente Polisario claims, de facto Morocco has been applying the 2000 Association Agreement to Western Sahara. If applied the same way, the 2010 Agreement will facilitate the export to the EU of agricultural products grown in Sahrawi land and fish caught in Sahrawi waters. If Morocco’s control of Western Sahara is illegitimate, this would violate the right of the Sahrawi people to self-determination and to permanent sovereignty over their natural resources.

The case raises a number of interesting questions:

Standing of NLMs

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The Mauritius Convention on Transparency: A Model for Investment Law Reform?

Published on April 8, 2015        Author: 

In the midst of heated debates on investor-State dispute settlement in Europe, on 10 December 2014 the United Nations General Assembly adopted the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration. Prepared by UNCITRAL in the context of its recent revision of the UNCITRAL Arbitration Rules, the Convention, also known as the ‘Mauritius Convention on Transparency’, was opened for signature on 17 March 2015 in Port Louis, Mauritius. Canada, Finland, France, Germany, Mauritius, Sweden, the United Kingdom and the United States signed the Convention at this occasion (see UN Press Release). In my Editorial in the latest issue of the Journal of World Investment and Trade (which this blog reproduces), I interpret this Convention as a piece of constitutional reform of the international investment regime and ask to which extent it can serve as a model for international investment law reform more generally.

A Piece of Constitutional Reform of the International Investment Regime

The Mauritius Convention will extend the application of the UNCITRAL Rules on Transparency, which so far have a very limited scope of application (only to UNCITRAL investor-State arbitrations that are based on treaties concluded on or after 1 April 2014), potentially to the entire treaty-based international investment regime as it stood on 1 April 2014. Notably, it would make the UNCITRAL Transparency Rules applicable to all treaty-based investor-State arbitrations under ‘old’ treaties, independently of the applicable arbitration rules. Whether the arbitration in question is governed by the UNCITRAL Arbitration Rules, the ICSID Convention, the Arbitration Rules of the International Chamber of Commerce, the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce – you name it – the Mauritius Convention would provide for transparency of submissions to arbitral tribunals, arbitration hearings, and decisions by arbitral tribunals, and give more room for third-party participation under a uniform set of rules. It could thus apply to some 3000+ investment treaty relations if both the respondent State and the investor’s home State are contracting parties or, alternatively, if the investor-claimant accepts the unilateral offer to apply the UNCITRAL Transparency Rules made by the respondent in signing the Convention (see Article 2 of the Mauritius Convention).

Provided it is signed and ratified by a sufficiently large number of States and regional economic integration organizations, such as the EU or ASEAN, the Mauritius Convention will bring about a paradigm shift in investor-State dispute settlement. Although possibilities for reservations, including subsequent ones, are broad (Articles 3 and 4 of the Mauritius Convention), and although ongoing arbitrations are excluded from its scope of application (Article 5 of the Mauritius Convention), the Convention will establish transparency as a general principle of international investment law.

This constitutes another step in the incremental adaptation of international investment law to the demands of a more democratic and accountable international public law system of private-public adjudication. The wide-spread application of transparency under the Convention would not only enhance the accountability of the underlying investor-State relations, but also enable better public control of the arbitral process. This turns the Mauritius Convention into an instrument with constitutional implications for the international investment regime. Read the rest of this entry…

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