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Announcements: Football Feminism Symposium; Litigating Obligations Erga Omnes and Erga Omnes Partes before the ICJ; Conference on International Fisheries Law; Cambridge International Law Conference; Conference on Human Rights for the Planet; UN Audiovisual Library of International Law

Published on February 16, 2020        Author: 
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1. Symposium: Football Feminism – Global Governance Perspectives. The Jean Monnet Center for International and Regional Economic Law & Justice at NYU School Law will host a two-day symposium – Football Feminism: Global Governance Perspectives – on 24 – 25 February 2020. The symposium will bring together scholars and practitioners from around the world to critically examine the transnational system of governance that regulates football (soccer) through the lens of gender. The presentation and discussion of interdisciplinary research (works-in-progress) on this topic aims to elucidate the operation of discrimination in and through the structures, rules, and practices of football governance; to assess various understandings of, and approaches to, advancing gender equality in this context; and to contemplate innovative ideas for feminist reform or reimagination of an increasingly complex and globalized system of significant social, economic, and political import. Further information is available here.

2. University of Westminster Panel on Litigating Obligations Erga Omnes and Erga Omnes Partes before the ICJ. On 18 February 2020, 5.30pm, the University of Westminster will host a panel on “Litigating Obligations Erga Omnes and Erga Omnes Partes before the ICJ: The Gambia v. Myanmarand Beyond” with Eyal Benvenisti (Cambridge), Maria Irene Papa (Sapienza), Ulf Linderfalk (Lund) and Marco Longobardo (University of Westminster). The event is organised by the International Law at Westminster (ILaW) research cluster in cooperation with ILSA at Westminster Chapter. More information can be found here. Free registration is available here. 

3. Conference on Persistent and Emerging Challenges in International Fisheries Law. On 10 – 12 September 2020 a conference entitled “Persistent and Emerging Challenges in International Fisheries Law” will be held in Tórshavn, Faroe Islands. The conference is co-hosted by the University of the Faroe Islands and the Law of the Sea Institute of Iceland and gathers together 32 strong panelists, including judges of international courts and tribunals, prominent professors of international law, well established practitioners and young promising scholars. The Conference will focus on challenges that emerge and those that persist in international fisheries law, including IUU related matters, institutional mechanisms in RFMOs, jurisdictional aspects in regard to fisheries disputes, substantive aspects in regard to disputes on the conservation and management of transboundary fish stocks, trade related measures with respect to fisheries resources and fisheries related matters concering BBNJ. Visit the website for more information. Read the rest of this entry…

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The Scorecard of the Phase One Trade Agreement

Published on February 14, 2020        Author: , and
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The United States President and the Chinese Vice Prime Minister signed a deal dubbed as the “Phase One Trade Agreement” (“the Agreement”) on January 15, 2020. The Agreement withholds further escalation of the on-and-off trade war, which has dragged on for over 18 months between the US and China. The Agreement will likely lay a foundation for the handling of managing the fierce competition between the U.S. and China moving forward, at least for the next several years. But as we discuss below, key issues such as Chinese government subsidies, disagreements over Huawei’s selling of 5G telecommunications equipment and U.S. export controls on high-tech goods were left unaddressed.

The 96-page Agreement contains eight chapters, covering intellectual property protection, technology transfer, trade in food and agriculture products, financial services, macroeconomic policies and currency, expanding trade, dispute resolution, and final provisions. The Agreement primarily focuses on addressing certain Chinese behaviors that have long been concerns for the U.S. and corporate America and aims at lifting the standards of conduct closer to those followed (at least in theory) by the United States. One of the most noticeable features of this Agreement is the obligations and structural changes China agrees to undertake: The phrase “China shall” appears 97 times in the text whereas the phrase “[t]he United States shall” only appears five times, two of which relate to promises undertaken by both China and the U.S. In certain areas, e.g., pharmaceutical-related IP rights and patent rights more broadly, China’s undertakings exceed those the U.S. secured from partners in other commercial treaties such as the United States-Mexico-Canada Free Trade Agreement (“USMCA”).

Hence the success of this agreement largely depends upon its implementation and enforcement by China, which has already generated doubts in several areas. Moreover, concerns have been raised over the Agreement’s consistency with the World Trade Organization (“WTO”). Some questions also arise regarding what exactly has been agreed upon given the vagueness of some of the language, particularly regarding China’s commitments to import more U.S. goods and services. Read the rest of this entry…

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UNCITRAL and ISDS Reform: Plausible Folk Theories

Published on February 13, 2020        Author:  and
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As observers of the UNCITRAL process, we watch the debates with great interest, writing about the emergence of different camps, giving perspectives on how the process fits within broader geopolitical developments, and offering potential models for moving forward. One thing that we are often struck by is how some of the field’s underlying narratives are being contested and reframed. In any reform process, some scripts about the old system are kept and others are discarded or rewritten. What does that process look like? At UNCITRAL in late January, we were able to watch it occur with respect to one long-held narrative: that investment treaties with investor–state arbitration are important for attracting and retaining foreign investment.

Plausible Folk Theories

Terence Halliday, a professor of the sociology of global governance and a long-time observer of UNCITRAL, coined the term ‘plausible folk theories’ to refer to the way in which ‘vast enterprises of global regulation and lawmaking [often] proceed on weakly founded justificatory rhetorics’. What he means by this is that many rules and regulations are passed at the global level based on assertions that are not subject to empirical testing. Instead, negotiators and policy makers frequently rely on assertions that sound reasonable but remain unverified.

A plausible folk theory isn’t necessarily wrong about the facts, it just isn’t verified. It may be contrary to empirical evidence, it may not. In the absence of factual support, what makes a folk theory plausible? Parsimony (it is simple), face validity (it sounds right), rhetorical compactness (it can be easily expressed), ambiguity (it papers over divisions), affinity with extant beliefs (it accords with prior assumptions), and unexamined premises and logics (it relies on assumptions and isn’t designed to withstand rigorous testing). Of all of these, the first two are probably the most important: does it have the simple sound of truth?

Arguably, the investment treaty system has long been built on plausible folk theories. If asked why states sign investment treaties, most people in the field historically would have answered ‘because it depoliticizes investment disputes’ or ‘because it increases foreign investment’ or ‘because it contributes to the rule of law’. These arguments sound right. They are plausible. They have the sound of truth to them. Yet, as the field has evolved, these claims have come under scrutiny in the academic literature and some have not stood up well. But is this evidence used in global governance debates? If not, why? Read the rest of this entry…

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Filed under: EJIL Analysis, International Economic Law, International Organisations, International Tribunal Procedure, International Tribunals, Investor-State Arbitration Tribunals
 
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Claiming ‘Private’ to Evade Democracy? The Leviathan Gas Deal and the Jordanian Constitutional Court

Published on February 12, 2020        Author: 
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In 2014, a Jordanian activist stumbled upon an article in the New York Times claiming that Jordan is planning to sign an energy deal with a number of multi-national corporations planning to exploit gas fields controlled by Israel in the Mediterranean. A few weeks later, the Jordanian minister of energy confirmed the claims in a press conference, the news was met with condemnation from the majority of parliamentary members, political parties, unions and civil actors in Jordan, as thousands took to the streets, with a good number of activists arrested and/or harassed for their involvement. These movements led to the establishment of the campaign against the gas deal. Popular dissent for the deal is backed by economic, policy and moral concerns especially with the lack of transparency on either side of the bargain, as more evidence showed that the deal was driven on an agenda of foreign relations rather than the wellbeing of the fragile Jordanian economy and its poverty stricken public. The absence of legal tools to contest the deal led the coalition of political parties to organise a symbolic popular court where the concerns of the Jordanian public were laid out. The government did not provide proper responses, claimed that secrecy clauses forbad such intervention, and that it is already too late as sunset clauses in the contract would put a heavy burden on the economy. On the Israeli side, civil society actors have expressed environmental concerns surrounding the extraction of gas leading to a case at the Israeli Supreme Court that temporarily halted the extraction.

Recent leaks shed further light on the terms of the contract (in Arabic), reigniting public dissent. In sum, the contract’s signatories were the government owned electricity company NEPCO, and NBL Jordan Marketing Limited, an offshore corporation registered in the Cayman Islands and owned by three Israeli corporations: Delek Drilling, Avner Oil Exploration, Ratio Oil Exploration alongside a subsidiary of the US based multi-national corporation Nobel Energy. Nevertheless, the contract confers rights and obligations on the Jordanian, Israeli and US governments (which is the main guarantor of the contract). The contract regulates the supply of 45 billion cubic meters of natural gas to be used for powering electricity in Jordan for over 15 years, for the amount of $10 billion, a rather big commitment for such a small country. Most notably: the deal limits Jordan’s capacity to exploit its local gas, if such a source were to be discovered during the period of the contract; it mandates a five year secrecy clause over any relevant contracts and arbitration awards; it contains a stabilisation clause that explicitly excludes consideration of changes in Jordanian law as a force majeur; the deal is also designed in a manner that escapes the Jordanian taxation regime at all stages; and as per dispute resolution, the contract explicitly excludes the jurisdiction of Jordanian courts and assigns an arbitration agreement. It also provides for uneven cancellation terms in favour of the of the multinational corporations. Read the rest of this entry…

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UNCITRAL and ISDS Reforms: What Makes Something Fly?

Published on February 11, 2020        Author:  and
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When conducting an international negotiation, the Chair has to ask him or herself: what makes something fly? This question really has two parts. The first concerns the negotiations themselves. Once you’ve taken off and achieved a certain cruising speed and altitude, how do you keep the momentum going? Will some flight paths be smoother than others? Are you moving toward a safe landing zone, even if it is some distance away? The second concerns the products you are developing in those negotiations. Are some options more aerodynamic than others? Are some more likely to achieve lift off? What component parts need to be designed and built? Is there an overall plan about how the pieces might be put together in the end?

These are questions we thought about as we watched the UNCITRAL process unfold in late January. On one level, it might have been the week when one could have expected to see some turbulence. Since the process started three years ago, this was the first time that the Multilateral Investment Court was formally on the agenda for discussion and it is clear that the views of states are divided on its merits. But on Monday, the Chair adeptly steered the group from high level questions (Is an investment court better than ISDS? Is a particular state for or against such a court?) to more technical engineering work (e.g., What are the ways of constructing an appeal? Which options are available for financing a permanent body? What issues need to be resolved regarding enforcement? What are the options for appointments?).

This approach meant that, instead of being an arena in which states rethink the system’s fundamentals (eg what are the purposes of investment treaties) or engage in high level policy positioning (eg do they support a court or arbitration), the Working Group began to feel a bit like a team of engineers breaking down a complex design challenge into its component parts. Each part undergoes preliminary analysis and troubleshooting in the Working Group, with states suggesting potential models or raising design concerns and considerations with the Secretariat, and tasking the Secretariat with further research and with creating prototypes for each part. Many delegates proved themselves to be serious engineers, coming well-prepared to engage in technical questions. In the process, momentum toward a panoply of reforms seems to be building as participants work collectively on individual design issues. Read the rest of this entry…

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Filed under: EJIL Analysis, Inter-State Arbitration, International Economic Law, International Tribunal Procedure, International Tribunals, Investor-State Arbitration Tribunals
 
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The International Criminal Court Independent Expert Review: reforming the Court: Part III

Published on February 10, 2020        Author: 
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Editor’s Note: This post is Part III of a three-part series. Read Part I here and Part II here.

In the first two parts of this series of posts, I examined the background to and structure of the 2020 Independent Expert Review (IER) of the International Criminal Court. The IER tasked with making “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole”. In particular, I noted that the IER is not an end in itself, rather it is the beginning of a member State-driven process of Court “review” originating in the ICC Assembly of States Parties (ASP).* (The “term” review seems preferred for its neutrality over “reform”).

The crystallising consensus around this broader process appears to be that it must, naturally enough, be conducted in dialogue with the organs of the Court. As I have already indicated, in my view the best possible outcome of the process would be that the ASP asserts its role as the legislative and governance arm of the Court principally through scrutiny and dialogue. The necessary corollary of judicial and prosecutorial independence is judicial and prosecutorial accountability – albeit that such accountability mechanisms may be exercised with quite a light touch. In an ideal world, the result would be that the Court’s organs would start implementing necessary reforms as a result of scrutiny and in order to avoid the ASP stepping in to legislate (as it can regarding amendments to the Statute and Rules of Procedure and Evidence). The question is the extent to which the organs of the Court appear to “get it” in terms of the need for review and are already taking steps in the right direction. Richard Clements has already ably written on the ICC’s “internal progress narrative” in which it presents its own history as a “move from inefficient bureaucracy in the early days to efficient and well-managed organization today”. My reflections here are intended more as a snapshot impression of the present moment, however, rather than an assessment of the ICC’s culture of managerialism over the longer duration. Read the rest of this entry…

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Filed under: EJIL Analysis, International Criminal Court, International Criminal Law, International Legal Profession, International Organisations
 
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Announcements: CfP Yearbook on International Investment Law and Policy; UN Audiovisual Library of International Law; ITLOS Training Programme; An EU Global Magnitsky Act? A RENFORCE Expert Dialogue; CfP 2020 Environmental Crimes Conference

Published on February 9, 2020        Author: 
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1. Call for Papers: The Yearbook on International Investment Law and Policy (2019 Edition). The Columbia Center on Sustainable Investment (CCSI) is pleased to announce a call for papers for the 2019 edition of the Yearbook on International Investment Law and Policy. The Yearbook is published by Oxford University Press (OUP) in hardcopy, as an ebook, and as part of OUP’s Investment Claims online service. The Yearbook monitors current developments in international investment law and policy. We welcome submissions for Part Two of the Yearbook, which includes analyses of central thematic issues in the contemporary discussions on international investment law and policy. All papers must be original texts and are subject to double-blind peer review. Original contributions to be considered for publication in the Yearbook are accepted on a rolling basis until 28 February 2020; please send submissions to Lisa Sachs (lsachs1 {at} law.columbia(.)edu). Interested authors are encouraged to send their contributions, along with an abstract and table of contents, to Lisa Sachs. Footnotes should conform to guidelines available here. Further details can be found on CCSI’s website. 
2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs recently added the following mini-series to the Mini-Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. Jorge E. Viñuales on “Law of State Responsibility” available in English and Spanish. The Audiovisual Library of International Law is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through SoundCloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.
 
3. ITLOS – Nippon Foundation Capacity Building and Training Programme 2020-2021. The ITLOS-Nippon Foundation Capacity-Building and Training Programme on Dispute Settlement under UNCLOS, July 2020 – March 2021, to be held at ITLOS (Hamburg, Germany), is welcoming applicants until 3 April 2020. For more information see the flyer and website.

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The International Criminal Court Independent Expert Review: reforming the Court: Part II

Published on February 7, 2020        Author: 
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Editor’s note: This post is Part II of a three-part series. Read Part I here.

In part one of this series of posts, I outlined the background to the 18th International Criminal Court Assembly of State Parties (ASP) adopting a resolution establishing an Independent Expert Review (IER) of the Court to begin work – and report – in 2020.* This brief post will examine the mechanics of that review process and consider some of the early criticisms made of it.

It bears repeating that, as many State Parties said in the ASP general debate, reviewing and strengthening the Court is a process, not an event. (A development I find encouraging, given my earlier scepticism of reform-by-expert-inquiry alone.) The IER will occur in parallel with an ongoing dialogue between the ASP and the Court, and the Court’s own internal efforts to reform and strengthen its processes. Critically, there now appears wider acceptance that while it is independent the Court must also be accountable. Indeed, probably the most effective accountability mechanism the ASP can bring to bear is simply scrutiny. In an ideal world, the other organs of the Court would look to effective internal reform in order to anticipate or limit ASP-initiated reform. The extent to which this is already happening is considered in the next, third, post in this series.

The structure of the IER and its mandate

A concern I had about the IER at the outset is its short timeframe (para 25). It is to commence work on 1 January 2020 and report in September. February and March are given over to “[c]onsultations with States Parties, Court officials, and civil society” and an interim report is scheduled for June-July. By the standards of the international system (or the Court) this is blisteringly fast. However, a longer timeframe may introduce its own problems. Aligning the availability of experts to serve on the IER becomes more complex the longer its mandate. Further, in terms of the animating force behind the IER, the terms of the present members of the ASP Bureau (the presidency or executive committee of the ASP) expire in December 2020. Finally, my concerns are fewer once the IER is understood as part of a larger review project not an end in itself.

In terms of structure, the IER resolution appoints three experts to each of three “clusters” (nine experts in total), each cluster dedicated to examining a set of issues: Read the rest of this entry…

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The International Criminal Court Independent Expert Review: reforming the Court: Part I

Published on February 7, 2020        Author: 
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Editor’s note: This post is Part I of a three-part series.

I was fortunate enough to attend the 18th International Criminal Court Assembly of State Parties (ASP) in The Hague for four days from 2-5 December.* A number of themes were apparent in the general debate as well as other panel discussions in plenary. External political challenges to the Court were widely noted (and in especially dramatic terms by the President of the Court). There was an obvious and high degree of consensus around the (successful) Swiss amendments on intentional starvation as a war crime in non-international armed conflict, the importance of the Court maintaining a focus on sexual and gender-based violence, the need to achieve greater equitable geographic representation and gender balance across the Court’s staff, and the importance of strengthening the process for the election of judges and the next Prosecutor. A significant resolution on the nomination and election of judges was passed which introduces recorded public roundtable discussions with judicial candidates, open to State parties and other stakeholders. There was also a call from Vanuatu to acknowledge the climate change crisis and add ecocide to the Rome Statute and a sobering moment as South Africa noted it was still contemplating withdrawal. The African Union and Kenya maintained their positions on head of state immunity from international criminal proceedings.

Important as these issues were, however, the dominant theme was plainly that of review and strengthening of the Court, which ASP President O-Gon Kwon noted had been a focus of media and academic interest. It was certainly taken up by State parties. Other than 20 statements made in the plenary session on review of the Court, the idea of the review was widely supported in the general debate (see for example statements by: Finland on behalf of the EU, Denmark, Zambia, Malawi, France, the UK, Luxembourg, Uruguay, South Korea, Mexico, Australia, Poland, Peru, New Zealand, Spain, Romania, Malta, Canada, Ghana, Chile, and Argentina among others). Unsurprisingly, the ASP adopted a resolution empowering nine independent experts to conduct an external review of the Court’s functioning in 2020.

Before examining the independent external review (IER) process in part two of these series of posts, I would like to try to capture some of the context and atmospherics around the idea of the IER. Read the rest of this entry…

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Climate Change as a Trigger of Non-Refoulement Obligations Under International Human Rights Law

Published on February 6, 2020        Author: 
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The recently published decision of the UN Human Rights Committee (HRC) pursuant to Individual Communication No. 2728/2016 (Teitiota v New Zealand) offers an insight into how the international legal system is coming to address climate change displacement. Teitiota is significant for its recognition that climate change impacts affecting migrants in their State of origin can trigger obligations of non-refoulement binding on the States they enter.

The HRC expounded on the effect of climate change on migrants’ right to life under Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), and provided guidance on how the applicable test of a ‘real risk of irreparable harm’ is to be deployed in this novel context.

The HRC’s decision concerned a complaint brought under the ICCPR First Optional Protocol by Ioane Teitiota, a Kiribati national, against New Zealand. Teitiota applied for asylum in New Zealand, on the basis that climate change affecting Kiribati exposed himself and his family to inter alia: violent land disputes, a lack of fresh drinking water, an inability to sustain a livelihood via agriculture due to soil salinization, and flooding (paras. 2.5-2.6). The New Zealand Immigration and Protection Tribunal, considering both the Refugee Convention and the ICCPR, rejected his application. His subsequent domestic appeals were also unsuccessful (paras. 2.2, 2.8-2.9).

Teitiota was removed to Kiribati in September 2015, and his family also returned from New Zealand (para. 4.4). His HRC complaint argued his removal placed New Zealand in breach of his Article 6(1) ICCPR right to life. The question before the HRC was whether it could depart from New Zealand’s findings to hold that Teitiota was exposed to a ‘real risk of irreparable harm’ to his right to life in Kiribati (para. 9.3). Only if this question could be answered in the affirmative was a non-refoulement obligation derived from Article 6(1) opposable against, and breached by, New Zealand (see HRC General Comment 31 (2004), para. 12). Read the rest of this entry…

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Filed under: Climate Change, Human Rights, United Nations
 
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