Home 2013 June (Page 2)

The Court of Arbitration Issues Partial Award in Indus Waters Kishenganga Arbitration

Published on June 12, 2013        Author: 

jawad ahmadJawad Ahmad is an attorney admitted in New York and is currently based in Singapore. From January to March 2012, Mr Ahmad worked as an intern at the International Bureau of the Permanent Court of Arbitration where he assisted Legal Counsel on legal research assignments concerning the Indus Waters Kishenganga Arbitration, but did not directly work with the Court of Arbitration. This post is derived from the Author’s forthcoming article in Arbitrational International – “Indus Waters Kishenganga Arbitration and State-to-State Disputes” Arbitration International Issue 3 2013.

On 18 February 2013, the Court of Arbitration (Court) rendered the Partial Award in the Indus Waters Kishenganga Arbitration between Pakistan and India. The Permanent Court of Arbitration in The Hague acted as Secretariat for the Court. The Court is expected to render the Final Award towards the end of 2013.

The case was brought under the Indus Water Treaty 1960 (Treaty) and it is the first time an arbitration has been initiated under the Treaty. The Treaty sought to divide the use of the Indus River System between Pakistan and India. With the involvement of the World Bank, the two countries were able to draw up the Treaty with specified rights and obligations. The Treaty allocated the Eastern Rivers exclusively to India and the Western Rivers to Pakistan. Each country has rights to develop its respected rivers for development purposes, such as hydro-electric power. The Treaty permitted India to use the Western Rivers for the purposes of generating hydro-electric power under an agreed framework. The current dispute involves India’s permissible use of the Western Rivers under the Treaty.

Water is an important economic asset for both India and Pakistan. Not only does it account for a large part of each country’s agricultural use, but also hydro-electric power. Investment in the Indus Basin Irrigation System is in the billions of dollars and it has contributed to 21 per cent of Pakistan’s GDP in 2009-10 (see Shahid Ahmad, ‘Water Insecurity: A Threat for Pakistan and India,’ Atlantic Council). India, with an enormous population, needs to expand its energy sources and is currently investing billions in developing dams along the Indus River system (see The Economist, Unquenchable thirst: A growing rivalry between India, Pakistan and China over the region’s great rivers may be threatening South Asia’s peace). The stakes in this arbitration is, therefore, very high for both countries.

Read the rest of this entry…

Comments Off on The Court of Arbitration Issues Partial Award in Indus Waters Kishenganga Arbitration

EJIL Vol. 24: No 2 Published

Published on June 12, 2013        Author: 

The latest issue of the European Journal of International Law (Vol. 24, No. 2) was published this week. As usual, the table of contents of the new issue is available at EJIL’s own website where readers can access those articles that are freely available without subscription. One of the articles that is freely available on that website is by my Oxford colleague – Martins Paparinskis: “Investment Treaty Arbitration and the (New) Law of State Responsibility” (see here for abstract). We plan to have a discussion about that article on the blog soon.

Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Let me also remind readers that, apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Filed under: EJIL Analysis
Comments Off on EJIL Vol. 24: No 2 Published

Germany and Botswana ratify the Kampala Amendments on the Crime of Aggression: 7 ratifications, 23 more ratifications to go!

Published on June 10, 2013        Author: 

meagan_wongMeagan Wong, PhD Candidate, Leiden University. She is currently a Visiting Scholar at the Lauterpacht Centre for International Law, University of Cambridge. She was accredited as an advisor to the Liechtenstein delegation at the most recent Assembly of States Parties to the Rome Statute of the International Criminal Court (Nov 2012).

Last month Dapo posted on this blog about where States Parties to the Statute of the International Criminal Court stand in the process of ratifying the Kampala Amendments on the Crime of Aggression. This is a follow-up to his post noting some recent developments with regard to the Kampala Amendments. Last week – on the 3 June 2013 – Germany’s Foreign Minister Guido Westerwelle deposited Germany’s instrument of ratification of the Kampala Amendments with the United Nations, thus making Germany the sixth ICC State Party to ratify the Amendments on the Crime of Aggression and the Amendments on War Crimes adopted in Kampala in 2010. One day later, Botswana ratified the Kampala Amendments see here. The significance of the ratification by these two States Parties is that Germany not only represents the first NATO member to ratify but was the first State whose leaders were convicted of crimes against peace. Botswana is the first African state to ratify. On 8 May 2013, Liechtenstein became the first country for which the amendments have entered into force, as Liechtenstein ratified the amendments a year previously (8 May 2012). Other countries that have ratified are: Samoa (25th September 2012) here; Trinidad & Tobago (13th November 2012) here; Luxembourg 15th January 2013 here ; and Estonia (27th March 2013) here.

As Article 15 bis (3) of the Kampala Amendments stipulates that at least 30 ratifications are needed by 2017 to activate the ICC’s jurisdiction over the crime of aggression, 23 more ratifications are needed. The Global Campaign for the Ratification and Implementation of the Kampala Amendments (“the Global Campaign”), initiated by the Permanent Mission to the UN in New York, in conjunction with the Global Institute for the Prevention of the Crime of Aggression, is leading efforts to ensure that the jurisdiction of the ICC over aggression is brought into effect as soon as possible.

One of the many marvels of the Kampala Amendments is that it demonstrates how small states can play an influential and significant role in shaping international law. It is widely acknowledged that the crime of aggression amendments would not have been adopted without the leadership of Liechtenstein. The ambassador of Liechtenstein to the United Nations (NY), H.E. Christian Wenaweser, was the President of the 2010 Review Conference and had steered the negotiation process ever since 2003, assisted by his legal advisor and Deputy Stefan Barriga. Read the rest of this entry…


Human Rights: Member State, EU and ECHR Levels of Protection

Published on June 7, 2013        Author: 

Article 53 of the Charter of Fundamental Rights of the European Union caused, already at its inception, a hermeneutical conundrum:

Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.

Article 51, which defines the Charter’s field of application, provides:

 The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

What if in, say, the implementation of Union law, it is found that the Union law violates a constitutional provision of the Member State protecting fundamental human rights?

Under the pre-Charter regime the resolution of such a conflict would proceed as follows. First, under CILFIT (Case 283/81 of 6 October 1982) the validity of the Union law would rest in the hands of the ECJ. A Member State court, even a court against whose decision there was a judicial remedy, would be required to make a preliminary reference for a finding of invalidity. Second, the ECJ would review the Union measure according to its human rights standards (informed, of course, by the constitutional traditions common to the Member States and the ECHR). The applicable human rights norm could not be dictated by the standard of level of protection of any given Member State (Hauer, Case 44/79 of 13 December 1979). If the ECJ were to find that the Union measure was not violative of human rights as defined by the ECJ, it would, by virtue of the principles of supremacy and equality of application of Union law, have to be followed by and within the Member States, even if a similar national measure would violate Member State constitutional provisions. There was a period in which some authors suggested that the ECJ would always have to adopt the highest level of protection to be found among the Member States. That nonsense has luckily been purged from most treatments of the subject matter.

Article 53 seemed to call that orthodoxy into question since an implementing measure could be thought to fall within both the sphere of application of the Union and a Member State. Article 53 could, thus, suggest that the prior understanding would mean that the constitutional protection in a Member State would be restricted and/or adversely affected if it afforded more extensive protection than the Union standard applied by the ECJ. Read the rest of this entry…


P.S. Catalonia

Published on June 6, 2013        Author: 

My Editorial on Catalan independence certainly put the cat among the pigeons – or perhaps more accurately, the pigeon (or dove) among the cats.  Reactions were ferocious and some unpleasantly ad hominem, even by some authors who should know better. I read with care all reactions, including those removed by our Blogmasters for violating the decorum and sobriety which are a hallmark of EJIL: Talk! Most underscored, with different levels of vehemence, the longevity and authenticity of Catalan nationalism – something that was not called into doubt – and a variety of historical grievances.  None, in my view, came even close to meeting my basic point, which was that to insist on independence as a solution to resolving the grievances and vindicating Catalan national identity, was a defeat of the very spirit and ethos which gave birth to that noble experiment which is the European Union. I repeat: Independence? Bon Voyage. But not in the EU.

Comments Off on P.S. Catalonia

Why Does it Take So Long for my Article to Be Published?

Published on June 5, 2013        Author: 

I have asked the Managing Editor to provide me with the statistics for the length of time it takes from submission to publication in EJIL. Here are the figures. The average time in review for manuscripts accepted without revision is 2.8 months and for those requiring revision the review period extends to seven months. These are averages; times range from one to 12 months. The average time from acceptance to publication is 6.5 months, ranging from two to 13 months. Thus, a fortunate author – whose article is punctually reviewed and accepted without the need for revision – may travel the path from submission to publication in, say, six months. But more commonly, the review process, particularly if revision is involved, followed by the queue to publication, means that authors will not see their article in print until well over a year after the initial submission.

There are two principal bottlenecks in the process: peer review remains one. For a recent article we wrote to eight peer reviewers before receiving a positive response! And one peer reviewer took 108 days before we finally obtained the report, albeit an excellent one. We now give a one-year digital subscription to our peer reviewers as compensation for their efforts and in the hope of expediting the procedure.

The second bottleneck is our pipeline. By the time an article is accepted for publication it will normally have to wait at least two and sometimes three issues before a slot becomes available. OUP is efficient in processing the copy we give them – typically it is them waiting for us! But that should not give the impression that we sit around twiddling our toes and flying kites with your submissions.

This, however, would be a good occasion to remind our authors and readers of our basic philosophy of journal publishing in the age of the internet, blogs, Facebook, and the like. We expect the instant note and comment on recent developments to take place on EJIL: Talk! In EJIL we aim to publish pieces which in our view have some lasting value – our rule of thumb is an expected shelf life of at least five years. I have, more than once, found myself writing such to an impatient author: ‘Maybe we made a mistake in accepting your piece, if it will, as you seem to suggest, lose its relevance if not published immediately.’  If someone is in the process of tenure review or the like, I would be happy to write to the relevant committees to attest that publication in EJIL is pending.

Filed under: Editorials, EJIL
Comments Off on Why Does it Take So Long for my Article to Be Published?

EJIL Vol. 24:2 – In This Issue

Published on June 4, 2013        Author: 

We open this issue with three articles showcasing the variety of high-quality international law scholarship that finds a welcome home in EJIL. Christopher McCrudden and Brendan O’Leary examine the recent decision of the European Court of Human Rights in Sejdić and Finci, exploring the difficult issues that arise where consociational or power-sharing arrangements, implemented to secure peaceful constitutional settlements in divided societies, are seen to conflict with the deep-seated norms and values of international human rights institutions. Boris Rigod analyses the purpose of the SPS Agreement in light of its negotiating history and economic theory; if properly applied, he concludes, it will neither undermine democratic self-government nor lead to a ‘post-discriminatory’ world trade regime. Anne Peters offers further reflections on Nino Cassesse’s last book, defending a ‘critical’ or ‘ideational’ positivist approach to international legal scholarship.

This issue sees the launch of what we hope will become a regular EJIL feature in succeeding years: a selection of papers from the Annual Junior Faculty Forum for International Law. A short essay by the Faculty Forum convenors – Dino Kritsiotis, Anne Orford and myself – describes the organization and goals of the inaugural Forum, and introduces the three exceptional papers selected for publication in this issue. Christopher Warren’s contribution delves into the work of 17th-century English republican poet John Milton, delineating his vision of the law of nations and shedding new light on the humanist tradition in international law. Evan Criddle’s article identifies and analyses the mechanism of ‘humanitarian financial intervention’, surveying the range of possible purposes to which it can be directed and the variety of international regimes that determine its legality. And Martins Paparinskis advances our understanding of the law of state responsibility by exploring how it applies in the context of investment treaty arbitration, where the participation of non-state actors has the effect of producing some surprising variations.

Our occasional series Critical Review of International Jurisprudence returns in this issue with a piece by Aldo Zammit Borda, who takes a formal approach to Article 38(1)(d) of the Statute of the International Court of Justice   ̶ regarding the application of ‘judicial decisions and the teachings of the most highly qualified publicists’   ̶  and distils an original interpretation of that provision from the judgments of international criminal courts and tribunals.

Roaming Charges shifts back from Moments of Dignity to Places, with ‘Backviews’ of two great international cities, New York and Singapore.

In this issue’s EJIL: Debate! Emmanuelle Tourme-Jouannet introduces and outlines what she affirms is an emergent new branch of international law, the ‘international law of recognition’. In his reply, Jean d’Aspremont focuses on the ‘methodological and functional anthropomorphism’ underlying Tourme-Jouannet’s project, which he argues acts to destabilize it.

The Last Page presents a poem on a theme with unfortunate resonance in our times: Ballade of Schadenfreude, by Susan McLean.

Filed under: Editorials, EJIL
Comments Off on EJIL Vol. 24:2 – In This Issue

New Issue of EJIL (Vol. 24: No. 2) Out Next Week

Published on June 3, 2013        Author: 

The latest issue of the European Journal of International Law will be published in the next week. Over the course of this week, we will have a series of post by Joseph Weiler – Editor in Chief of EJIL – which will then appear in the Editorial in the issue of the journal that will be published the following week. Here is the Table of Contents of the next issue of EJIL:



Christopher McCrudden and Brendan O’Leary, Courts and Consociations, or How Human Rights Courts May De-Stabilize Power-Sharing Settlements

Boris Rigod, The Purpose of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)

Anne Peters, Realizing Utopia as a Scholarly Endeavour

New Voices: A Selection from the Inaugural Annual Junior Faculty Forum for International Law

Dino Kritsiotis, Anne Orford, JHH Weiler, On the Annual Junior Faculty Forum for International Law

Christopher Warren, Milton and the Epochs of International Law

Evan Criddle, Humanitarian Financial Intervention

Martins Paparinskis, Investment Treaty Arbitration and the (New) Law of State Responsibility Read the rest of this entry…

Filed under: EJIL
Comments Off on New Issue of EJIL (Vol. 24: No. 2) Out Next Week