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Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 

On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us. Read the rest of this entry…

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Filed under: EJIL Analysis, European Union, International Court of Justice, Jurisdiction, Peace Keeping, Reservations to Treaties, Territorial Disputes, Treaty Law, United Nations, Use of Force
 
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Protecting the Environment at the World Trade Organization: the Eventual ‘Greening’ of Trade?

Published on June 20, 2017        Author: 

This post is the result of work conducted for the ILA Committee on Sustainable Development and the Green Economy in International Trade Law.

In a recent post, Diane Desierto discussed the Port State Measures Agreement (‘PSMA’) and its role in attempting to combat illegal, unregulated, and unreported (‘IUU’) fishing. Aside from the numerous interesting aspects of the PSMA identified in that post, the Agreement is also expected to play a key role in regulating IUU fishing beyond the law of the sea. At the World Trade Organization (‘WTO’), members are currently in negotiations to prohibit the use of subsidies which contribute to IUU fishing, as well as those that contribute to overfishing or overcapacity. While the elimination of fisheries subsidies which contribute to IUU fishing have been on the agenda of WTO members since the Doha Declaration in 2001, little progress has been made. The adoption of Agenda 2030 and its 17 Sustainable Development Goals (‘SDGs’) in 2015 has changed this, giving new energy to the international community to achieve a specific set targets. Of most relevance here is SDG 14.6 which requires

‘by 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU fishing, and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the WTO fisheries subsidies negotiation.’

The objectives of SDG14.6 extend beyond subsidies that contribute to IUU fishing to include those that contribute to overcapacity and overfishing. Disciplining such subsidies raises a number of challenges for the WTO. While the regulation of subsidies is a standard feature of world trade law, fisheries subsidies present unique challenges. For example, where a member considers a subsidy to harm their interests, they have two options under the Agreement on Subsidies and Countervailing Measures (ASCM): through direct challenge under the WTO’s dispute settlement system, or through the imposition of countervailing duties as a self-help remedy which seeks to counteract the effect of the subsidy. In each instance, the rules on subsidies seek to avoid harm to members’ interests, understood (inter alia) as injury to domestic industry, lost opportunities in third markets, or nullification or impairments of benefits.

Read the rest of this entry…

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Filed under: EJIL Analysis, International Economic Law, International Environmental Law
 

The Jadhav Case and the Legal Effect of Non-Registration of Treaties

Published on June 19, 2017        Author: 

Those following the legal tangle of the Jadhav Case closely would have noticed India’s (attempted) coup de grâce in its oral submissions regarding the bilateral Agreement on Consular Access of 21 May 2008 between India and Pakistan (“2008 Agreement”, Annex 10 in India’s Application Instituting Proceedings) – that it is unregistered and thus, incapable of being invoked. Pakistan’s oral submissions indicate that this Agreement will form a large part of its case on merits, which in fact, is far stronger than the Indian or Pakistani media give it credit for. Pakistan claims that, irrespective of guilt, the fact of arrest on “political or security grounds” exempts Jadhav from the right of consular access, as per paragraph (vi) of the Agreement, which reads as follows: “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on merits.” Pakistan interprets this examination “on merits”, as regarding the grant of consular access itself, making it a matter of discretion rather than right.

India met this contention head on in the oral stage, with a two-pronged argument. First, it argued that the 2008 Agreement does not purport to restrict or reduce consular access rights provided by the Vienna Convention on Consular Relations, 1963 (“VCCR”). According to India, the 2008 Agreement is for the purpose of “confirming or supplementing or extending or amplifying” (Art. 73 VCCR) the VCCR rights, to the extent that the Agreement “further[s] the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country” (preamble of the 2008 Agreement). To that extent, the first part of the Indian argument is one of interpretation of paragraph (vi) of the 2008 Agreement. The argument is that the Agreement must not be interpreted as exempting those arrested on political or security grounds from consular access since such an interpretation would be contrary to its preamble, to the VCCR, and to the law of treaties, since Art. 41 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”) permits subsequent bilateral agreements only when they are harmonious with pre-existing multilateral treaties. India has not yet offered a counter-interpretation of paragraph (vi). However, a fair guess is that it will argue that the envisaged “examin[ation]…on merits” is for determining the grant of additional rights conferred by the Agreement (such as immediate release and repatriation) and not for the grant of basic VCCR rights themselves. Read the rest of this entry…

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Filed under: EJIL Analysis, International Court of Justice, International Tribunals, Permanent Court of Arbitration, Treaty Law
 

Announcements: BIICL Director Vacancy; Extraterritoriality of EU Law and Human Rights After Lisbon Workshop; CfA International Dispute Resolution; Access to Remedy in National Action Plans to Implement the UNGPs

Published on June 18, 2017        Author: 

1. BIICL Director Vacancy. The British Institute of International and Comparative Law (BIICL) is seeking to appoint an exceptional candidate to the role of Director. BIICL conducts research and activities around the world across the broad range of public international law, private international law, comparative law and the rule of law. This is an exciting opportunity to hold a unique and high profile post in one of the most respected independent legal research institutes in the world. This is a full-time post for a five-year period, which may be renewed. Secondments from other institutions will be considered. The deadline for applications is 24 July 2017. For information on how to apply, see here. Informal enquiries may be addressed to the Deputy Director of BIICL, Patricia Ambrose, at p.ambrose {at} biicl(.)org. To view the full job description please see here.

2. Extraterritoriality of EU Law and Human Rights After Lisbon Workshop. The University of Sussex is hosting the research workshop ‘Extraterritoriality of EU Law and Human Rights After Lisbon: Scope and Boundaries’ on July 13 and 14. Anybody interested in attending the workshop should contact Dr Velluti [S.M.Velluti {at} sussex.ac(.)uk] and Dr Tzevelekos [v.tzevelekos {at} liverpool.ac(.)uk]. Attendance is free of cost but space is limited, with attendance allocated on a first come basis. See here for further information.

3. Call for Abstracts – International Dispute Resolution. The Dispute Resolution Interest Group (DRIG) of the American Society of International Law (ASIL) and the Lewis & Clark Law School are pleased to announce a workshop to discuss academic works-in-progress on international dispute resolution, taking place at the Lewis & Clark Law School on the afternoon of 10 November 2017.  Each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. Submissions are welcome from academics and practitioners around the world. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. Abstracts up to 500 words may be submitted by 5pm Pacific Time, 15 July to this folder.  Participants must submit a substantial work in progress by 21 October 2017, which will be circulated in advance of the workshop to all participants. It is expected that this work will consist of a working draft paper at least 20 pages long. Please direct any questions to pbechky {at} bcr-dc(.)com or foster {at} lclark(.)edu.

4. BIICL Event: Access to Remedy in National Action Plans to Implement the UNGPs: Are States Still Taking a Nap? This event will take place on 22nd June 2017: 17:30-19:00. Access to effective remedies is a key component of the UN Guiding Principles of Business and the Human Rights (UNGPs). Despite an impressive uptake of the UNGPs by almost all stakeholders, the victims of business-related human rights abuses continue to struggle in holding corporate actors accountable. Why is this so? This seminar will explore this question in relation to National Action Plans (NAPs) released so far by states. Surya Deva will propose certain key elements that should guide future NAPs as well as the revision of existing NAPs in improving access to effective remedy in business-related human rights abuses. Organised and chaired by BIICL as part of the Economic and Social Research Council Business and Human Rights Seminar Series. Speaker: Surya Deva, City University of Hong Kong and Member of the UN Working Group on Business and Human Rights.

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Election of Judges to the International Tribunal for the Law of the Sea

Published on June 17, 2017        Author: 

2017 will be a busy year for elections to international tribunals. There will be elections later this year to elect five Judges of the International Court of Justice and six judges of the International Criminal Court (see here). Earlier this week, the States Parties to the United Nations Convention of the Sea elected seven Judges to the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges and elections for seven judges are held every three years. As with the ICJ and the ICC, ITLOS judges serve for a term of 9 years and may be re-elected [Art. 5(1)ITLOS Statute]. The purpose of this post is to simply to report the results of the 2017 ITLOS election and to make a few observations about possible trends in elections to international tribunals.

The States Parties re-elected two judges currently on the ITLOS bench: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). The five new judges taking up their seats on the 1st of October 2017 will be: Mr Oscar Cabello Sarubbi (Paraguay), Ms Neeru Chadha (India), Mr Kriangsak Kittichaisaree (Thailand), Mr Roman Kolodkin (Russian Federation), and Ms Liesbeth Lijnzaad (The Netherlands).  The full list of candidates for the elections can be found here. Judges are elected where they obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties [Art. 4(4), ITLOS Statute]

An interesting development in the current ITLOS election is the failure of two serving judges: Judges Joseph Akl (Lebanon) and Rudiger Wolfrum (Germany) to be re-elected.  The qualifications and experience of these judges are beyond doubt. However, both have been on ITLOS since its formation in 1996 and there might be a feeling that 21 years is long enough for anyone. I have heard it said at the UN there is a feeling among states that though there are no formal term limits for judicial positions, treaty bodies and the like, it is not healthy for individuals to be there for too long. It was a surprise to some (myself included) when the late Sir Nigel Rodley was not re-elected to the Human Rights Committee last year and perhaps the long period of service on the Committee was a factor. This is an issue that states should take into account in nominating candidates.

Two of the seven judges elected are women (Neeru Chadha and Ms Liesbeth Lijnzaad, who both recently represented their states in the Enrica Lexicie and Artic Sunrise proceedings before ITLOS.). Read the rest of this entry…

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Filed under: International Tribunal for the Law of the Sea, International Tribunals
 
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The Shifting Landscape of Investor-State Arbitration: Loyalists, Reformists, Revolutionaries and Undecideds

Published on June 15, 2017        Author: 

The investor-state arbitration landscape is shifting under our feet. The utility and legitimacy of traditional investor-state arbitration have come under fire, but states have not converged on a viable alternative. In simplified terms, three main camps are developing, which I call the “loyalist,” “reformist,” and “revolutionary” camps. The vast majority of states, however, are yet to take a public position on whether and, if so, how to reform investor-state dispute settlement. These “undecided” states are not a homogenous group, nor are they necessarily passive. Many states within this group are actively watching these developments and debating the various reform proposals.

One of the big strategic questions for the investment treaty system in the next few years will be whether the loyalists, reformists or revolutionaries will be able to attract a critical number of the undecideds to their cause in order to create a reasonable measure of convergence on a particular approach. The alternative is that the undecideds will split among the existing camps and/or develop their own distinct or hybrid positions. Another question is whether any members of the existing camps will shift their alliances. It is unclear how this will ultimately play out. What is clear, however, is that the tide appears to be turning against the traditional model of investor-state arbitration as it has few – if any – real supporters among states.

Loyalists, Reformists and Revolutionaries Read the rest of this entry…

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Filed under: EJIL Analysis, European Union, Inter-State Arbitration, International Economic Law, Investor-State Arbitration Tribunals, Theory of International Law
 
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Corporations Suing in Defense of Human Rights? Lessons from Arkansas

Published on June 13, 2017        Author: 

Debates regarding corporate responsibility and human rights have centered on claims that corporations or their contractors are directly violating certain human rights or assisting states in doing so.  Whether in the extractive industries (Shell in Nigeria), the apparel industry (the Bangladesh apparel factory collapse), or even software (Google searches in China), many civil society groups see the multinational corporation as a right-violator or at least rights-violation enabler.  But a recent episode in Arkansas – the home of Bill Clinton and the 1957 school desegregation crisis, but also one of the 31 U.S. states with the death penalty — shows corporations taking the offensive for human rights.

Over the last decade, the manufactures of the drugs involved in lethal injections have adopted policies asserting that they will not sell their drugs for that purpose.  A typical example is the 2015 policy of Akorn:

“Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection . . . . To prevent the use of our products in capital punishment, Akorn will not sell any product directly to any prison or other correctional institution and we will restrict the sale of known components of lethal injection protocols to a select group of wholesalers who agree to use their best efforts to keep these products out of correctional institutions.”

The companies’ commitment to avoid participation in lethal injection extends to creating an internal protocol in their sales practices, with a goal of keeping the drugs out of the hands of the executioners.

The stakes were raised in Arkansas in April when McKesson Medical-Surgical Inc. sued the state, seeking a preliminary injunction to obtain the return of chemicals it sold to the state corrections department or a guarantee that they would not be used for executions.  McKesson asserted that prison officials deceived the company into selling them one hundred vials of vecuronium bromide, a chemical that causes paralysis during executions.  McKesson claimed that the officials called a sales representative they knew and that McKesson filled the order without knowing their ultimate use.  The legal claims were based on state contract law as well as a violation of the takings clause in the Arkansas Constitution. The next day, a judge in Pulaski County (which covers Little Rock) issued the preliminary injunction.  The state immediately appealed the ruling to the state supreme court, which stayed the injunction.  Over the next week, Arkansas executed four prisoners using the three-drug method that includes vecuronium bromide, although the source of the drug actually used remains publicly unavailable.

McKesson’s legal case may have sounded in Arkansas contract law, but it had human rights written all over it.  Here are the key international legal issues – and some moral aspects — and implications of the case:

Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

Foreign control and ICSID jurisdiction on Energy Charter Treaty Claims of Local Companies: The Eskosol Case

Published on June 12, 2017        Author: 

The ICSID tribunal in Eskosol in liquidazione v. Italy rejected Italy’s Rule 41.5 application to have the claim thrown out for being “manifestly without legal merit.” I offer a summary and some reflections on two interesting aspects on the tribunal’s jurisdiction.

Background

The claimant challenged, under the Energy Charter Treaty (ECT), Italy’s 2011 regulatory rollback regarding a feed-in tariffs (FIT) scheme (check this report by the claimant’s lawyers). Investment connoisseurs are familiar with the topic, litigated in Charanne, Eiser and other exhausted or pending cases, some confidential. The claimant is an Italian company, Eskosol in liquidazione (bankruptcy receivership). Eskosol claims to have invested in a 120-megawatt photovoltaic energy project, expecting to benefit from the 20-year FIT scheme. At the time of the rollback, the Belgian company Blusun held 80% of Eskosol. Eskosol alleged that this change rendered its business unviable. It abandoned its projects, became insolvent and entered bankruptcy receivership in November 2013. In December 2015, the tribunal-appointed receiver brought the ICSID claim, on the company’s behalf.

Blusun, the Belgian company controlling 80% of Eskosol, had brought ICSID proceedings  in 2014, under the ECT, against the same measures. Eskosol attempted to file a non-party submission in that arbitration, asserting that Blusun had usurped its claim and sought damages owed to Eskosol alone. Blusun’s abusive claim would prejudice the rights of Eskosol, its creditors and its minority (non-Belgian) shareholders, since Blusun showed no intention to channel any potential gain to Eskosol. Eskosol’s request was denied. Blusun’s claim failed on the merits in December 2016, and in May 2017 Blusun launched annulment proceedings.

The Decision 

In Eskosol, Italy raised four Rule 41.5 objections for expedite consideration (i.e., invoking glaring legal impediments and not hinging on disputed facts [36; 98]; see Álvarez y Marín [95]). The tribunal considered Eskosol’s claim not “manifestly” meritless. This conclusion does not prejudge the defendant’s full preliminary objections, which the tribunal shall examine, jointly with the merits, in the next phase. Read the rest of this entry…

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Filed under: EJIL Analysis, International Economic Law, Investor-State Arbitration Tribunals
 

Announcements: The Law and Policy of Brexit; Human Rights Research Students’ Conference; PluriCourts Centre of Excellence Workshop Series; CfA Postdoctoral Researcher – The Paths of International Law; CfP The Use of Law by Social Movements and Civil Society

Published on June 11, 2017        Author: 

1. The Law and Policy of Brexit. Maastricht University Brussels Campus: 30 June 2017. This conference will include the following panels: (i) the future of EU-27; (ii) future EU-UK relations; (iii) Northern Ireland and Scotland after Brexit. Confirmed speakers: Prof Kenneth Armstrong (Cambridge), Dr Lorand Bartels (Cambridge), Prof Monica Claes (Maastricht), Prof Sionaidh Douglass-Scott (QMUL), Prof Christina Eckes (Amsterdam), Dr Veronika Fikfak (Cambridge), Prof Christopher McCrudden (Queens Belfast), Prof Hildegard Schneider (Maastricht), Prof Jure Vidmar (Maastricht) and Prof Jan Wouters (KU Leuven). The venue for this conference is Maastricht University Brussels Campus, Avenue de l’Armée 10, 1040 Brussels, Belgium, and it will be held on 30 June 2017 from 10.30-17.30 Attendance is free of charge, but please register here.

2. Human Rights Research Students’ Conference. This Postgraduate Research Students’ conference is 10 July at the University of Essex, 9.00 – 18.􏰆00. It is aimed at students working within the broad interdisciplinary field of human rights and social justice. The conference aims to stimulate research on contemporary human rights issues, problems, challenges and policies, and to facilitate the dissemination of such research. We encourage submissions on the following themes, as well as submissions of a general nature: Human Rights in a Post-Brexit United Kingdom; Human Rights in the Times of Austerity and Backlash; Issues Relating to International Humanitarian Law and Human Rights Law; and Epistemological and Methodological Challenges in Cross-, Trans- and Inter-disciplinary Human Rights Research. Please send abstracts of up to 350 words to HRC {at} sas.ac(.)uk by 15 June 2017. For more information, see here.

3. PluriCourts Centre of Excellence at Oslo University Workshop Series on “Identity on the International Bench”. The PluriCourts Centre of Excellence at Oslo University is organizing a workshop series on “Identity on the International Bench”. On 11 and 12 January 2018, the first workshop will focus on Gender on the International Bench will take place in The Hague. Currently women judges make up on average 17% of international courts and tribunals, demonstrating significant disparity regarding the participation of women on the bench across different international legal regimes. Such lack of representativeness can affect the legitimacy of the international dispute settlement process and its outcomes. The aim of this workshop is to analyse causes and effects of the dearth of women judges, and the resulting implications for the legitimacy of international adjudicatory institutions and the judicial decisions rendered. This will include an examination of international rules and practices concerning appointment and composition of the bench, judicial behaviour linked to the absence or presence of female judges, and potential effects on compliance with judicial awards. Please find the Call for Papers here. Proposals should be submitted via freya.baetens {at} jus.uio(.)no and c.m.bailliet {at} jus.uio(.)no by 31 July 2017. Read the rest of this entry…

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Filed under: Announcements and Events