magnify

Comments on “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” by Karen J. Alter, James T. Gathii and Laurence R. Helfer

Published on August 4, 2016        Author: 

The article by Karen Alter, James T. Gathii and Laurence Helfer is instructive and, notwithstanding its considerable length, very readable. I learned a lot – about the three specific ‘court backlashes’, about the institutional setting in which the three courts under review operate, and about the factors determining the success or failure of ‘court-curbing’ – and felt engaged throughout. My comments are in three parts: First, I am making a fairly simple, perhaps banal, point that is implicit in the authors’ detailed research. Second, I mention factors that I felt could be relevant in assessing the success or failures of court backlash (but that are not the focus of the article). And third, I compare the three ‘African’ backlashes studied by the authors to the one that currently dominates debates in Europe, viz the backlash against investor-State dispute settlement (ISDS).

Proliferation and the new complexity of the international judiciary

 While Alter, Gathii and Helfer engage with the particularities of court design in three regional settings, their article brings home a fairly straightforward point: it shows how diverse and how complex the landscape of international courts and tribunals, in the present ‘post-proliferation’ era, has become. Of course, everyone today accepts that ICJ, ITLOS, ECtHR, etc. have been joined by ‘new courts on the block’. But I am less sure that a sufficient number of mainstream international lawyers working in the field of dispute settlement are really following through on this insight: So much of the disciplinary scholarship (and I certainly will not exclude myself here) remains focused on the ‘usual suspects’; and, with the exception of human rights, there still is precious little on the regional courts outside Europe. (Try ‘EACJ’ in the ppl.nl database – only two entries come up. And how many of EJIL: Talk!’s readers could have named the seat of the SADC Tribunal or of the ECOWAS Court in an international law pub quiz, or if Dapo Akande had taken the matter up in one of his trivia competitions?) Against that background, Alter’s, Gathii’s and Helfer’s scholarship – including but not limited to their current EJIL Article – is eye-opening because it takes the lesser-known courts seriously. And perhaps not only that: the present article, as well as Alter’s and Helfer’s earlier work on the Andean Tribunal, may suggest that in order to study the more important developments relating to international courts today we should be looking, not to Strasbourg, Geneva or The Hague, but to Abuja, Arusha and Quito. Read the rest of this entry…

Print Friendly
Filed under: EJIL, EJIL Article Discussion
 

Backlash Against International Courts in West, East and Southern Africa

Scholars have studied backlash against international courts (ICs) for more than a decade. While Cassandra-like warnings about backlash seldom materialize, Alter (2000) and Helfer (2002) documented examples of government court-curbing campaigns in Europe and the Caribbean. One can question the effectiveness of these backlash efforts, which did not fundamentally change the design or the practices of the targeted ICs and review bodies. In fact, over the last forty years, nearly every revision of the structure and mandate of ICs has expanded jurisdiction, widened access rules or strengthened judicial sanctioning powers (See Alter 2014, 84-86 and Gathii 2013, 260-261 and Gathii 2016, 40).

Our EJIL article, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, considers three more recent efforts to thwart or cow international judges. These efforts are noteworthy in that governments advanced concrete and credible proposals to limit the power of ICs in response to politically embarrassing rulings. The three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.

Our account of these backlashes – which includes information about the court-curbing campaigns that is not widely known – explains why it is difficult for governments to seriously sanction ICs in response to adverse rulings. This introduction to the EJIL:Talk! symposium relating to our article summarizes why the ECOWAS backlash failed, the EACJ backlash was redirected, and the SADC Tribunal backlash succeeded. Read the rest of this entry…

Print Friendly
Filed under: EJIL, EJIL Article Discussion
 

Discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer’s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Published on August 3, 2016        Author: 

This week we will be hosting a discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer‘s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences. The article is the free access article in the new issue of the European Journal of International Law (Vol. 27, No. 2), which is now out. It offers an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent.

Karen J. Alter is Professor of Political Science and Law at Northwestern University, and a permanent visiting professor at the iCourts Center for Excellence, University of Copenhagen Faculty of Law. Alter is author of the award-winning book The New Terrain of International Law: Courts, Politics, Rightsand numerous books and articles. Her research focuses on the judicialization of international relations, and global capitalism and law.

Professor James Thuo Gathii is the Wing-Tat Lee Chair of International Law at Loyola University Chicago School of Law. His research and teaching interests include African national and international judiciaries, African regional integration as well as international trade and public international law. He has published two books with Cambridge and Oxford University Presses and over 80 law review articles and book chapters. His forthcoming book is The Contested Empowerment of Kenya’s Judiciary 2010-2015: A Historical Institutional Analysis, Sheria Publishing House, (2016).

Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a Permanent Visiting Professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen. Helfer has authored more than 70 publications and has lectured widely on his diverse research interests, which include the interdisciplinary analysis of international institutions, international courts, and international human rights law.

The article and the issues it raises will be subjected to scrutiny and further comment this week by Christian J. Tams, Kofi Oteng Kufuor and Erika de Wet. We are grateful to all of the participants for agreeing to have this discussion here.

Print Friendly
Filed under: EJIL, EJIL Article Discussion
 

New EJIL:Live! Interview with Karen Alter on Backlash against International Courts in West, East and Southern Africa: Causes and Consequences

Published on August 3, 2016        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Karen Alter, Professor of Political Science and Law at Northwestern University, about the article she co-authored with James T. Gathii and Laurence R. Helfer, “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences”, which appears in EJIL, Volume 27, Issue 2. The video begins with a short discussion of Professor Alter’s experience as a political scientist entering the world of law, especially the initial reception to her work and the difficulties translating between the respective languages of these two fields. After an outline of the article, the conversation turns to the scientific dimension of the research. Professor Alter discusses how she and her co-authors set out to understand the dynamics of the politics of backlash, and why the sanction against the Court ultimately succeeded in the case of the SADC. The interview concludes with a discussion of the uncertain boundaries of the politics of backlash and plans for further research into other regional organisations as well as the International Criminal Court. The interview was recorded at the European University Institute.

We will be running a discussion on the article on the EJIL: Talk! blog this week.

We welcome comments and reactions to EJIL: Live!, as well as to our article discussion.

Print Friendly
 

Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation

Published on August 2, 2016        Author: 

In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.

Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.

However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’ Read the rest of this entry…

Print Friendly
 

Headscarves and the Court of Justice of the European Union: Two Opposing Opinions

Published on August 1, 2016        Author: 

The Court of Justice of the European Union (CJEU) has to decide on two cases on the wearing of Islamic headscarves at work. Both concern headscarves, which cover the hair and neck, but which leave the face free. The cases were heard together on the 15 March 2016 and the Advocate General’s (AG’s) opinions have been issued, so now it is up to the CJEU to decide. But this is not made easier because the two opinions (one by AG Kokott and the other by AG Sharpston) seem to contradict each other in a number of ways. This post will consider the difference in the interpretation of ‘genuine and determining occupational requirements’. Both cases concern discrimination on the grounds of religion or belief contrary to Directive 78/2000/EC. Article 4(1) of this Directive determines that:

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

This article thus creates an exception to the prohibition of discrimination in situations where having a protected characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. For example, a Catholic school can require a teacher of religious studies to be Catholic.

The first case (Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV), referred by the Court of Cassation in Belgium, concerns a Muslim woman, who worked for G4S as a receptionist and who was permanently contracted out to a third party. She informed G4S that she wanted to start wearing an Islamic headscarf and was told that this was against the employer’s strict neutrality rule in the workplace. When she refused to take off her headscarf at work, she was dismissed. Read the rest of this entry…

Print Friendly
 

Announcements: Vacancy for Assistant Professor in PIL; GoJIL Student Essay Competition

Published on July 31, 2016        Author: 

1. University of Southern Denmark Vacancy for Assistant Professor in Public International Law. The Department of Law at the University of Southern Denmark in Odense is currently advertising a post as Assistant Professor in International Law with starting date 1 January 2017 or soon thereafter. The successful applicant will have a strong profile in both research and teaching and also be interested to work in a multidisciplinary environment. This will include contributions to the University’s Centre for War Studies and the interdisciplinary master degree in “International Security and Law”. The candidate is expected to be able to teach in English and Danish within three years from the start of employment. For more information and the application form see the official job advert. Applications are accepted until 21 August 2016.

2. Goettingen Journal of International Law Student Essay Competition. The Goettingen Journal of International Law (GoJIL) dedicates its 8th Student Essay Competition to the topic Transparency in International Law. The GoJIL invites you to actively take part in the illumination of the concept and/or reflect on its implementation on the international level. The deadline for your submission is 30 November 2016. The maximal word count is 5000 words (excluding footnotes). The winning submission will be published in one of the upcoming GoJIL issues. The Student Essay Competition gives young scholars the chance to gain practical experience and get their own professional scientific publication. We strongly encourage you to take advantage of this great opportunity and hand in your submissions. For further details, see www.gojil.eu/essay-competition or contact the Editors at essay.competition {at} gojil(.)eu.
Print Friendly
Filed under: Announcements and Events
 

Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related Money Laundering by Foreign Officials?

Published on July 29, 2016        Author: 

On 14 June 2016, the International Court of Justice (ICJ) announced that Equatorial Guinea had instituted proceedings against France before the Court. Equatorial Guinea’s claims arise from the French prosecution of Teodoro Nguema Obiang Mangue, First Vice-President of Equatorial Guinea, on charges of corruption-related money laundering. This is the first time that allegations related to large-scale corruption – often dubbed as ‘kleptocracy’ or ‘grand corruption’ – engender a dispute before the ICJ. This post offers an overview of some of the legal issues that the Court may address in the course of this litigation.

Background

Mr Obiang is First Vice-President of Equatorial Guinea and the son of the country’s president, Teodoro Obiang Nguema Mbasogo (who is, incidentally, the world’s longest-serving president, in power since 1979). At the time when the proceedings were brought, Mr Obiang was Second Vice-President in charge of defence and security, having been promoted to his current post on 22 June 2016.

The two statesmen are no strangers to controversy. Allegations of corruption have been levelled against them repeatedly (see, e.g., here and here). In 2014, Mr Obiang surrendered part of his US-based property in settlement of US v One White Crystal-Covered ‘Bad Tour’ Glove et al, an asset forfeiture case brought by the US Department of Justice that involved his collection of Michael Jackson memorabilia and real estate. A criminal investigation is reportedly underway in Spain and corruption-related human rights litigation against Equatorial Guinea is pending in the African Commission on Human and Peoples’ Rights.

The French investigation against Mr Obiang arises from a criminal complaint submitted by Transparency International France and Sherpa, two anti-corruption NGOs. Their allegation is that he has pilfered the coffers of Equatorial Guinea and invested the proceeds in France. The French authorities launched an enquiry after the Cour de Cassation’s 2010 judgment that confirmed the standing of NGOs to bring criminal complaints. On 13 July 2012, France issued an international arrest warrant against Mr Obiang. As of now, the pre-trial investigation has been concluded and the investigating magistrate shall decide whether to refer the case to court. Mr Obiang’s attempt to invoke immunity in France fell through as the Cour de Cassation ruled that (1) immunity under customary international law is limited to heads of states, heads of governments, and foreign ministers, and (2) at the time of the alleged commission of the imputed offences, Mr Obiang was merely a minister of agriculture and forests.

In another twist of events, in 2011 – that is, after the Cour de Cassation’s 2010 ruling that paved way for his prosecution – Mr Obiang sold his Parisian mansion to the state of Equatorial Guinea. Equatorial Guinea asserts that the property has henceforth formed part of the premises of its embassy to France. Unimpressed by the manoeuvre, the French investigating magistrate ordered the seizure of the building in 2012.

In Equatorial Guinea’s contention, (1) the French criminal proceedings constitute an unlawful interference with its internal affairs because alleged wrongdoing would fall within the exclusive jurisdiction of Equatorial Guinea, (2) Mr Obiang is entitled to immunity from the French criminal jurisdiction, and (3) the seizure of the building is in breach of the Vienna Convention on Diplomatic Relations 1961. Read the rest of this entry…

Print Friendly
 

Philip Morris v Uruguay: an affirmation of ‘Police Powers’ and ‘Regulatory Power in the Public Interest’ in International Investment Law

Published on July 28, 2016        Author: 

In recent years there has been criticism that international investment treaties and investor-State arbitration conducted under those treaties increasingly, and unacceptably, have encroached upon the legitimate uses of States’ regulatory power. These concerns have not only been expressed in scholarship, but have also been at the forefront of State negotiations in recent multilateral and bilateral trade and investment agreements (see, for example, the recent discussion by Anthea Roberts and Richard Braddock here on the China-Australia Free Trade Agreement). The concerns have led to policy proposals from States and international organisations for greater safeguards for States to be able to enact measures in the public interest without attracting liability under investment treaties.

Investor-State arbitration tribunals appear to be alive to these concerns. On 8 July 2016, a tribunal (constituted by Professor Piero Bernardini, Mr Gary Born and Judge James Crawford) convened pursuant to the Switzerland-Uruguay Bilateral Investment Treaty (‘BIT’) delivered an award which, by majority, upheld the legality of two tobacco-control measures enacted by the Uruguayan government for the purpose of protecting public health. The award contains an extensive analysis of the interaction between States’ regulatory powers to enact laws in the public interest and States’ obligations to protect and promote foreign investment within their territory. This post will focus on two aspects of the award that considered this interaction: the claim pursuant to Article 5 of the BIT (expropriation) and the claim pursuant to Article 3(2) (fair and equitable treatment or FET).

The challenged measures

The claim, brought by the Philip Morris group of tobacco companies against Uruguay, challenged two legislative measures. First, the claimants challenged a law that mandated a ‘single presentation requirement’ on cigarette packaging, such that different packaging or variants of cigarettes were prohibited.

Secondly, the claimants challenged a law that mandated an increase in the size of health warnings on cigarette packaging from 50 to 80% of the lower part of each of the main sides of a cigarette package (‘the 80/80 requirement’). As the the amicus brief submitted by the WHO and Framework Convention on Tobacco Control (‘FCTC’) Secretariat noted, large graphic and text health warnings are increasingly common on tobacco packaging globally and a number of States have enacted (or are considering enacting) laws with the aim of preventing misleading tobacco packaging, as is required of States parties to the FCTC (including Uruguay). Read the rest of this entry…

Print Friendly
 

Turkey’s Derogation from the ECHR – What to Expect?

Published on July 27, 2016        Author: 

In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR).  So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).

Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.

Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.

Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Read the rest of this entry…

Print Friendly