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Announcements: Job Opportunity with ICRC

Published on September 21, 2013        Author: 

A research position is available to work on the ICRC – British Red Cross cooperation to update the practice collection underpinning the ICRC’s study on customary international humanitarian law. Details on the ICRC’s work on customary IHL can be found here. The job announcement and application form can be found at the British Red Cross website.

Filed under: Announcements and Events
 

Holding Lawyers Representing States to a Higher Standard

Published on September 20, 2013        Author: 

Gibson photoCatherine H. Gibson is a Legal Adviser in the Iran-United States Claims Tribunal and a former Trial Attorney in the Civil Division of the U.S. Department of Justice.

Many thanks to EJIL:Talk! for the opportunity to blog. This post and the article on which it is based are written in my personal capacity, and all opinions are my own.

In my recent article in the Georgetown Journal of International Law I argue that attorneys representing States in international tribunals should act as ministers of justice, rather than as zealous advocates for their clients. My article focuses on U.S. government lawyers, but the underlying principles apply equally to all counsel appearing before international tribunals on behalf of States.

While domestic legal systems may generally prescribe specific, enforceable ethical duties for lawyers, no such formal standards exist under general international law or in the rules of most international tribunals. As discussed here, this gap may be partly filled by international courts’ rules of evidence and procedure and the reputational effects of repeat player relationships. This gap remains problematic generally, however, because lawyers of differing legal backgrounds may have divergent views of their duties and ethical obligations. In cases involving States, this gap is particularly troubling due to the high stakes for those involved and these cases’ potential importance in international law.

Fortunately, international law of lawyers’ conduct is developing. Read the rest of this entry…

 

A Rejoinder to Yenkong Ngangjoh-Hodu

Published on September 20, 2013        Author: 

Thank you, Yenkong, for the thoughtful reply to my post.

Yenkong has now clarified that his original post was suggesting that a State may raise a defense (rather than a counter-claim) to a claim that it violated an investor’s legitimate expectations, on the grounds that the investor engaged in tax avoidance.  I agree wholeheartedly that an investor’s own conduct may be relevant to a determination of whether its legitimate expectations were violated. That is an uncontroversial point. However, to be relevant, the investor’s conduct must relate in some way to the State’s alleged breach such that it contextualizes or justifies the State’s actions. Where the State’s conduct would otherwise violate the applicable legal standard, it may show that its conduct was in fact an appropriate response to some action or omission of the investor. In contrast to such a circumscribed approach, Yenkong’s original post seems to argue that a State may raise a “tit for tat” defense without needing to establish the existence of a causal relationship between the investor’s tax avoidance and the State’s allegedly breaching conduct.

Further, it is still not clear to me how invoking “legitimate expectations” would advance the State’s position in such a scenario or even how that standard would become legally applicable to the investor’s conduct. Yenkong acknowledges that the fair and equitable treatment (FET) obligation on which the legitimate expectations standard is based runs one way, defining the State’s obligations to the investor. That the investor’s actions may be relevant to assessing whether the State violated its FET obligation does not imply a reversal of the direction of the obligation. It is not the objective of investment treaties to govern the investor’s obligations toward the host State. The treaties instead set out substantive obligations of the State and offer investors recourse to arbitration in order to correct a real or perceived power imbalance created by the obsolescing bargain problem and a lack of credibility of domestic courts in handling claims by foreigners. The aim is to permit the host State to make a credible commitment to protect foreign investors. The investor’s obligations toward the State, by contrast, are governed by its contract with the State (where applicable) and the host State’s laws. The State is able to pursue the captive investor for violations through its own domestic administrative, criminal, and civil processes and, where applicable, international arbitration. In short, investment treaties do not seek to protect the State’s legitimate expectations (expressly or implicitly), because there are other legal mechanisms available for that purpose.

As regards balancing the interests of the investor and the development needs of the host State as a method of interpreting the State’s substantive obligations, the treaty would have to provide a textual basis for such an approach. Read the rest of this entry…

 

Syria and the Semantics of Intervention, Aggression and Punishment

Published on September 19, 2013        Author: 

untitledCarsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director, Grotius Centre of International Legal Studies, University of Leiden

As I have tried to argue in a draft paper to be published in  the Journal of International Criminal Justice (Vol. 11, Issue 5) one of the most striking features of discussion concerning the legality of strikes against Syria has been the mixture of semantics relating to intervention. The justification of intervention in Syria has been replete with references to notions of accountability, deterrence and punishment. For example, US Secretary of State John Kerry linked the moral legitimacy of the proposed response to the idea that ‘there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people’.  Also, the United Kingdom Legal Memorandum speaks of the objective of ‘deterring or disrupting the further use of chemical weapons’. Section 2 of the Resolution of the US Senate Foreign Relations Committee invokes three rationales of the authorization of military intervention: (i) ‘respond to the use of weapons of mass destruction by the Syrian government’; (ii) ‘deter Syria’s use of such weapons’; and1 ‘degrade Syria’s capacity to use such weapons in the future’.

This language associates military intervention with notions of ‘retribution’ and  ‘punishment’. The justification seems to be predominantly linked to the ‘gravity’ of the violation. The Obama Administration has translated this imagery into the notion of the ‘red line’. The  metaphor seems to suggest that such a breach of international law is so severe that it cannot be tolerated by the international community and warrants a repressive response. The concept that certain acts might trigger international responsibility and are of concern to the ‘international community as a whole’ is of course well-known (ICJ,  Barcelona Traction) and reflected in the ILC Draft Articles of State Responsibility (Art. 48).

The use of chemical weapons against civilians is both a violation of customary law and an international crime (UK Legal Memorandum, para 2).  But the consequence of this approach, i.e., the idea to ‘punish’ a regime for unlawful action under jus in bello through resort to the use of force, is highly controversial. There are other competing, and at least similarly important ‘red lines’ that require respect, i.e., Articles 2 (1) and (4) of the UN Charter, the prohibition of aggression and the viability of the collective security system, as argued by others.

The policy case in favor of intervention mixes two levels of discussions that have been separated in past decades: state responsibility for an international wrongful act, and individual criminal responsibility for international crimes. The idea that another state (rather than individuals) might be ‘punished’ has been banished from contemporary international law, in contexts such as sanctions, the ban on reprisals against civilians or the prohibition of collective punishment in international criminal law (e.g., Article 4, paragraph 2(b), of Additional Protocol II to the Geneva Conventions), since it has an indiscriminate effect. The current discourse on intervention appears to re-open this principle. Read the rest of this entry…

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Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?

Published on September 18, 2013        Author: 

The Sudanese Government has applied to the United States for a visa that will enable Sudanese President Omar Al-Bashir to attend the United Nations General Assembly session which starts this week (see BBC report here). The International Criminal Court issued an arrest warrant for Bashir in 2009 and whenever he has travelled abroad since then questions have arisen as to whether the host state ought to arrest him or not. The United States is, of course, not a party to the ICC Statute and therefore does not have an obligation to arrest Bashir. With respect to the US two questions arise. First, may the US deny Bashir entry to the US given that Bashir is seeking to attend the UN General Assembly as a representative of Sudan? Second, if Bashir were to be granted a visa and permitted entry, may the US arrest him whilst there for the GA session? I foreshadowed these very issues in the final section of a an article I wrote on Bashir’s Immunities, in the 2009 volume of the Journal of International Criminal Justice. In that piece, I argued that the despite the immunity that Heads of State are ordinarily entitled to under international law, the referral of the Sudan situation to the ICC implicitly made Article 27 of the ICC Statute (which removes the  immunity of state officials) applicable to Sudan. I also argued that “Given that the Statute operates in this case not as a treaty but by virtue of a Security Council resolution it may apply even to non-parties. [Non-parties to the ICC Statute] have no obligations under the Statute to arrest  . . . [h]owever, they have the right to deny immunity as a result of the Security Council’s implicit decision to adopt Article 27” (p. 348). However, I went on to state that:

“Despite the arguments above, there is one set of immunities that may not be removed by the Security Council. These are the immunities of representatives to the United Nations” (p. 351).

After discussing the obligation of the US to confer visas to those travelling to to the US to attend meetings of the General Assembly, I concluded that:

 “ . . . if Al Bashir were bold enough he would not only have the right to represent his state at UN meetings, he would be immune from arrest were he to do so” (p. 352).

The US Obligation to Grant a Visa

The US, as host State to the United Nations has an obligation to permit representatives of member States (and other persons invited to the UN) entry to the US for the purpose of attending meetings of the principal and subsidiary organs of the United Nations. This obligation is derived from three sources which are of increasing specificity in regulating the visa issue. Read the rest of this entry…

 

Kenya Should Reconsider Proposed Withdrawal from the ICC

Published on September 18, 2013        Author: 

picture_2Charles C. Jalloh is currently a Visiting Associate Professor at the Florida International University College of Law and an Assistant Professor at the University of Pittsburgh, School of Law.

On September 6, 2013, a majority of Kenya’s National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to “urgently undertake measures to immediately withdraw” the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a “fundamental change in the circumstances relating to the governance” of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were “lawfully elected” under the Constitution of Kenya [PDF] on March 4, 2013.

The motion, which also resolved to soon table a law that would repeal the country’s International Crimes Act, which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. I argue that there are compelling legal reasons why the Kenyan government should not heed what the opposition party has described as an “ill considered” recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.

I submit that the reputational and other costs of withdrawing from the ICC regime for Kenya far outweigh the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court.

Read the rest of this entry…

 

Aerial Herbicide Spraying Case Dead in the Air

Published on September 17, 2013        Author: 

The ICJ has just announced the removal from its list of the Aerial Herbicide Spraying (Ecuador v. Colombia) case (press release; order), which was consensually discontinued as the parties reached an agreement resolving their differences. The main issue in the case was that Colombia’s aerial hearbicide spraying of coca leaf plantations in Colombia (with the ample help of the US in the ‘war on drugs’) harmed the people and environment of Ecuador as in some cases the herbicide drifted accross the border. The 9 September 2013 Agreement:

establishes, inter alia, an exclusion zone, in which Colombia will not conduct aerial spraying operations, creates a Joint Commission to ensure that spraying operations outside that zone have not caused herbicides to drift into Ecuador and, so long as they have not, provides a mechanism for the gradual reduction in the width of the said zone; … sets out operational parameters for Colombia’s spraying programme, records the agreement of the two Governments to ongoing exchanges of information in that regard, and establishes a dispute settlement mechanism.

The case before the ICJ was well advanced, with the written pleadings already completed. While it is of course always a good thing that states are able to resolve their disputes peacefully, it’s to an extent a pity that the Court was not given the opportunity to decide this case, which could have been very important with regard to questions of transboundary harm. It even had one particular issue near and dear to my heart, as Ecuador alleged that Colombia was violating the human rights of Ecuadorians living accross the border, thus raising the issue of the extraterritorial application of the relevant human rights treaties (yet the Court was probably not going to rule on it anyway). Of note is also how the Court’s docket has recently shrunk rather signficantly, partly due to more (and welcome) efficiency and mostly due to a lower number of incoming cases.

UPDATE: But it seems the Court is getting a follow-up to the Nicaragua v. Colombia delimitation case. Lose some, win some.

 

Legitimate Expectations in Investment Disputes: A Reply to Sadie Blanchard

Published on September 17, 2013        Author: 

Let me clarify some few points which Sadie Blanchard has disagreed with in my last post. As indicated in my last post, the fair and equitable standard from which the doctrine of legitimate expectations is derived requires the host state among other things to act in good faith and without arbitrariness towards foreign investors (See Techmed v Mexico, ICSID,  2003).  While it is clear that the state is always at the receiving end with regards to the fair and equitable treatment doctrine, the role/the conduct of the investor may not be totally irrelevant in assessing the application of the standard. Surprisingly, Sadie seems to disagree with this very simple fact despite the well settled maxim ‘Caveat Investor’.  In EDF (Services) Limited v. Romania , the tribunal stated that: “Legitimate expectations cannot be solely the subjective expectations of the investor. They must be examined as the expectations at the time the investment is made, as they may be deduced from all the circumstances of the case, due regard being paid to the host State’s power to regulate its economic life in the public interest.” (Award Merits, (8/10/2009), para. 219). Moreover, it is clearly not sufficient not to contextualise the interpretation of fair and equitable treatment when considering whether the legitimate expectation of an investor has been frustrated. Such context will obviously take into account the conduct of the claimant as well as the overall objective of the investment treaty. Surprisingly, Sadie finds this view problematic although it is not new (see Peter Muchlinski, 55 ICLQ, 2006, Garcia-Bolivar, O. CUP, (2011)).

Sadie seems to be unconvinced that the legal framework of foreign investment must protect the legitimate expectations and interests of both the investor and the host state. To Sadie, the centre of the universe in investment treaty should be the protection of the interests of the investors rather than balancing the interest of the latter and the development needs of the host state expected under any FDI. Sadie’s one-sided approach is very troubling because it is incongruous with the object and purpose of most investment treaties. Read the rest of this entry…

 
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The Shaky Proposition of the State’s Legitimate Tax Expectations: A Response to Yenkong Ngangjoh-Hodu

Published on September 17, 2013        Author: 

I do not share a number of Yenkong Ngangjoh-Hodu’s views about the legitimate expectations doctrine, but this response focuses on the final paragraph of his post, in which he argues that a State could somehow raise a legitimate expectations argument against a foreign investor that engages in “tax avoidance.” For the sake of clarity, I understand Yenkong to mean not tax evasion, which would violate the law of the host State and thus subject the investor to domestic criminal and civil penalties, but what has been defined as “the minimization of tax liability by lawful methods.” This is also known as “tax planning.” (Photo: Avoiding the window tax in England, credit)

I see several problems with Yenkong’s suggestion. First, as he correctly explains, the legitimate expectations doctrine is an interpretation of the fair and equitable treatment (FET) provisions contained in many investment treaties. Those provisions invariably impose a one-way obligation that governs the State’s treatment of the investor, not the reverse. This is a separate issue from whether (a) a State can invoke an investor’s actions to show that it treated the investor fairly in the circumstances (it can), or (b) a State can raise counterclaims (it can in some cases), or even (c) some treaties do or may in the future impose specific substantive obligations on investors (they likely will). However, even considering those possibilities, it is not clear on what legal ground a State would “develop” “an argument . . . that its legitimate expectations [were] frustrated.”

Second, Yenkong asserts that tax avoidance or tax planning is “incongruous with the spirit of any bilateral investment agreement.” While he makes no attempt to support this claim, it is not obviously true. BITs typically state their goals in their preambles, and I have yet to see one that refers to increasing tax revenue. Instead, they refer to promoting greater economic cooperation, stimulating the flow of private capital, fostering economic growth and development, and maximizing effective use of economic resources. It thus appears entirely possible for an investment to uphold the “spirit” of a BIT by creating new and beneficial cross-border economic activity while still minimizing its tax liability within the confines of the law.

Third, he states that, “instead of an unqualified ‘legitimate expectations’, tribunals ought to clearly take into account investor’s conduct.” There are a few problems here. He appears to have shifted from an argument that a State should be able to claim that its expectations were violated to an argument that an investor’s tax conduct might appropriately be raised as a defense to the investor’s allegation that its legitimate expectations were violated. Is he hinting at the possibility of a counter-claim (in which case, on what legal theory, since as noted above FET is a one-way obligation), or is he suggesting a defense? If the latter, as he acknowledges earlier in his post, the investor’s conduct is already considered as part of the determination of whether its alleged expectations were legitimate and whether the State’s actions thwarted them. However, it is not at all apparent in what factual situation tax avoidance/planning would be relevant to an investor’s claim that its legitimate expectations were violated. Such scenarios would certainly be rare.

Finally, assuming for the sake of argument that there were a legal foundation on which a State could raise a legitimate expectations claim, on what basis would a State allege to have developed a legitimate expectation to collect a certain level of tax beyond that legally required? It seems to me there would have to be some kind of agreement on this between the investor and the State to found a claim.

 
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A Critique of the Legitimate Expectations Doctrine in Investment Treaty Arbitration

Published on September 16, 2013        Author: 

Yenkong Ngangjoh-HoduDr Yenkong Ngangjoh Hodu is a Senior Lecturer in Law at the University of Manchester School of Law.

In recent years, the concept of ‘legitimate expectations’ has routinely been put forward by claimants as the basis of claims in investment treaty arbitrations, and endorsed by some arbitrators (see International Thunderbird Gaming Corporation v  United Mexican States, Separate Opinion of T. Walde, para. 37). Relying on ‘legitimate expectations’ that have been frustrated as grounds for an award is troubling, and in the words of a recent EJIL article by Martins Paparinskis “suggest[s] a radical departure from the traditional model of international responsibility”, and may even be tantamount to deciding ex aequo et bono [(2013) 24 EJIL 617, 628]. Tribunals have regarded the doctrine of legitimate expectations as  a part of the fair and equitable treatment standard provided for in investment treaties (see Sempra Energy International v Argentine Republic, pp. 87-88 at para. 298). This is incongruous with the law of state responsibility where the breach of a contract between a state and an alien is not necessarily a violation of international law (Article 4, ILC Articles on State Responsibility). Apart from references to precedent, investment tribunals have, in the majority of cases, hardly taken the pain to justify the overwhelming reliance on legitimate expectations in making awards (Anthea Roberts, 104 AJIL 2010).

Legitimate expectations presuppose that an agreement or a promise generates a certain level of expectations, known as legitimate expectations. It is still unclear what exactly will give rise to legitimate expectations and under what conditions such expectations require unhindered protection. The most popular use of legitimate expectations in domestic jurisdictions (England and Australia) has been in the area of administrative law and more precisely, concerning issues of judicial review. In this context, the basic test for legitimate expectations is the prior existence of a promise (R (Bibi) v London Borough of Newham [2001] EWCA Civ 607) that needed protection by a public authority (Wheeler v Office of the Prime Minister [2008] EWHC 1409). Similarly, in German law the doctrine is connected to the protection of trust (for instance, Article 38 of the German code on Administrative Procedure).

However, in the context of investment arbitration, legitimate expectations is somehow seen as an incentive for foreign investors to settle on a particular investment destination based on a legal structure and representations made by the receiving state. Read the rest of this entry…

 
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