magnify
Home 2017 September (Page 2)

The MERCOSUR Protocol on Investment Cooperation and Facilitation: regionalizing an innovative approach to investment agreements

Published on September 12, 2017        Author:  and

The States Parties of the MERCOSUR (Argentina, Brazil, Paraguay and Uruguay) signed in April 2017 the Protocol on Investment Cooperation and Facilitation (“MERCOSUR Protocol”).

As discussed in this post, the Protocol draws significantly on the Brazilian model investment agreement (the Agreement on Cooperation and Facilitation of Investments – ACFI), which stands out for departing from the traditional design of Bilateral Investment Treaties (BITs), particularly – but not only – by excluding the possibility of investor-State dispute settlement (ISDS).

The emergence of the MERCOSUR Protocol has implications at the level of investment policy, as it represents a step towards the regionalization of the Brazilian model. It reflects the attempt to include in a single document the realities of four countries with important political, economic and investment policy differences, as expressed by the varying trajectories of Argentina and Brazil in the investment area.

It also raises interesting questions from an international law perspective. It highlights the legal challenges faced by Brazil, which not only joined the network of international investment agreements (IIAs) as a late-comer but also opted for embracing a particular approach to investment treaties. Accordingly, aside from provisions that innovate in investment law-making, the MERCOSUR Protocol incorporates provisions whose intention seems to be to insulate Brazil from applying protection standards often found in the over 3,000 treaties that now comprise the network of BITs, but which have been deliberately absent in the ACFI.

Read the rest of this entry…

 
Comments Off on The MERCOSUR Protocol on Investment Cooperation and Facilitation: regionalizing an innovative approach to investment agreements

In Memoriam: Frits Kalshoven

Published on September 11, 2017        Author: , and

The world has lost one of its greatest international humanitarian law scholars.

On Wednesday 6 September 2017, at the respectable age of 93, emeritus professor Frits Kalshoven passed away. Professor Kalshoven was one of the most well-known and respected international humanitarian law (IHL) scholars, but above all, he was a very kind, warm and humble person – insisting, for example, to always be addressed by his first name. He was a mentor on IHL for us, as he has been to so many. Indeed, for years, the first introduction to IHL for many students was his book “Constraints on the Waging of War”.

Frits began his career as an officer in the Royal Dutch Navy (1945-1967). During his service, he studied law in Leiden. After completing his studies in 1958, he taught law, including IHL, at the Royal Naval Academy. When he left the navy, he joined the law school of Leiden University, where he wrote his PhD on belligerent reprisals (1971), the publication of which is still regarded the standard work on this topic (and which was reprinted in 2005). Between 1975 and 1989, he held the Red Cross Chair in IHL at Leiden University and subsequently was a professor at Groningen University (1999-2002), before returning to Leiden as professor emeritus. As a member of the Dutch delegation, he negotiated, and was one of the drafters, of the 1977 Additional Protocols; and the Certain Conventional Weapons Convention of 1980.

Frits had an enormous passion for IHL. Although he gave his valedictory lecture in 1989 in Leiden, he never really actually retired, but rather continued to be actively involved in the humanitarian law field, helping to shape and develop it. Besides teaching full courses and guest lectures at various universities, he was the first Chairman of the UN Commission of Experts to investigate serious violations of IHL in the Former Yugoslavia (1992-1993), and was a member and president of the International Humanitarian Fact-Finding Commission (1991-2001). He was a long-term Advisor to the Board of the Netherlands Red Cross (1971-1993), and after that always ready to support its IHL department with advice and contributions to its events. Until the very last moment, he continued to attend international law events to engage with other scholars and practitioners, in nearby The Hague, but also in San Remo. Read the rest of this entry…

Filed under: Announcements and Events
 

Announcements: ILA British Branch Conference; Revista Latinoamericana de Derecho Internacional

Published on September 10, 2017        Author: 
1. ILA British Branch Conference. This year’s conference will take place on September 22 and 23 at the offices of Clifford Chance. With the theme New International Order in an Isolationist World the conference will address the pressing challenges faced by international law in the political and economic climate prevailing in many regions of the world. These include the challenges caused by rising populism in Europe and North America and reactions against free trade and economic interdependence, manifested most obviously in the Brexit referendum and policies advocated by President Trump, the changing foreign policies of many countries towards military and diplomatic intervention in politically unstable regions and the flows of refugees into Europe, the role of international criminal law in the modern world along with the challenges faced by the International Criminal Court, and the increased scrutiny of the legitimacy of investment treaty arbitration, whether as a standalone system or as an aspect of mixed trade and investment agreements. The conference will begin with a keynote address from Ben Emmerson QC, UN Special Rapporteur on Counter-Terrorism and Human Rights followed by six panels covering the following topics: peace and security; human rights and international humanitarian law; international trade law; international investment law; regionalism; and accountability and remedies under international law, and will include selected speakers drawn from private practice, the public sector and academia in order to incorporate diverse perspectives, both theoretical and practical, on the conference theme. To view the conference programme and to register see here.
2. New Issue: Revista Latinoamericana de Derecho Internacional. The fifth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. LADI’s sixth issue includes a special dossier on history and human rights, featuring articles by Samuel Moyn, Juan Pablo Scarfi, Lynn Hunt Stefan-Ludwing Hoffmann, and María Inostroza, along with an interview with Professor Dino Kritsiotis. The latest issue can be found here.
Filed under: Announcements and Events
 
Comments Off on Announcements: ILA British Branch Conference; Revista Latinoamericana de Derecho Internacional

New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

Published on September 7, 2017        Author: 

In this latest episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Niels Petersen of the University of Münster, whose article, “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”, appears in Volume 28, Issue 2 of the journal.

In the article, Professor Petersen explores International Court of Justice decisions confirming the existence of customary international law.  The abstract of the article states that:

It is often observed in the literature on customary international law that the identification practice of the International Court of Justice (ICJ) for customary norms deviates from the traditional definition of customary law in Article 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

The EJIL:Live! discussion focuses on the principal empirical findings of the article, and Petersen’s novel conceptualization of those arguments in terms of “judicial politics”, explicable by the institutional constraints that the Court faces. This conversation offers a reflection on how this assessment of the jurisprudence could alter scholars’ normative conceptions of the Court’s decisions, particularly in regards to customary international law.

 

Read the rest of this entry…

 
Comments Off on New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

International Law or Comity?  Exploring whether Grace Mugabe can successfully claim immunity for crimes committed on foreign soil.

Published on September 4, 2017        Author: 

Background Facts

On 14 August 2017 various news sites reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman. A court hearing to obtain a statement from Mrs Mugabe was scheduled for the 15th but she failed to appear. On the evening of the 16th the Government of Zimbabwe directed a note verbale to the South African government invoking diplomatic immunity on her behalf and stating that Mrs Mugabe’s itinerary in South Africa included amongst private matters her attendance and participation at the scheduled SADC Heads of States/Governments Summit and other Bi-lateral Diplomatic Meetings.

The question which has gripped lawyers and laymen alike is whether or not Mrs Mugabe can successfully claim any kind of immunity under international law to shield herself from arrest and prosecution.  Media reports asserted that Mrs Mugabe claimed “diplomatic” immunity”. However, as the spouse of a sitting Head of State, ordinarily resident in Zimbabwe, Mrs Mugabe cannot be considered a diplomatic agent and is not entitled to the protections afforded under the Vienna Convention on Diplomatic Relations (VCDR). Customary international law also confers personal immunity on some state officials. This personal immunity is extensive in scope, and wide enough to cover both official and private acts by heads of state, heads of government and foreign ministers as the Arrest Warrant Case  points out. As Mrs Mugabe does not fall within any of the categories above, she cannot claim personal immunity. In addition, customary international law accords, functional immunity in relation to acts performed in an official capacity. This immunity covers the official acts of all state officials and of those who act on behalf of the state.  It is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. However, the alleged assault by Mrs Mugabe was not undertaken in the performance of any official duty and functional immunity is unavailable in relation to that act.

This post considers whether the Mrs Mugabe may have been entitled to immunity, while in South Africa, as the spouse of a head of state. The post first considers whether the spouse of a representative to SADC, an international organization, may be entitled to immunity. It then explores the immunity of family members of state officials on special missions and of heads of states. Read the rest of this entry…

 

Announcements: Cambridge Asylum and Migration Studies; CfS UCL Journal of Law and Jurisprudence

Published on September 3, 2017        Author: 
1. Cambridge Asylum and Migration Studies. Cambridge University Press has launched a new book series: Cambridge Asylum and Migration Studies. The series is now accepting book proposals. At no time in modern history have so many people been on the move as at present. Migration facilitates critical social, economic, and humanitarian linkages. But it may also challenge prevailing notions of bounded political communities, of security, and of international law. The political and legal systems that regulate the transborder movement of persons were largely devised in the mid-twentieth century, and are showing the strains. New challenges have arisen for policymakers, advocates, and decision-makers that require the adaptation and evolution of traditional models to meet emerging imperatives.  This new series aims to be a forum for innovative writing on all aspects of the transitional movement of people. It publishes single or coauthored works that may be legal, political, or cross-disciplinary in nature. The series is edited by a world leader in international refugee law, Professor James Hathaway, University of Michigan. He is supported by an Editorial Advisory Board comprising Alexander Betts, University of Oxford, Vincent Chetail, Graduate Institute of International and Development Studies, Thomas Gammeltoft-Hansen, Raoul Wallenberg Institution of Human Rights and Humanitarian Law, Audrey Macklin, University of Toronto, and Saskia Sassen, Colombia University. Potential authors should contact Finola O’Sullivan at Cambridge University Press, the series editor, or any member of the Editorial Advisory Board.
 
2. UCL Journal of Law and Jurisprudence Call for Submissions. The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the first issue of 2018 (Volume 7, Issue 1 (March 2018)). The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000 – 12,000 words, case notes of 6,000 – 8,000 words and book reviews of 1,000 – 2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 16 October 2017. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website.
Filed under: Announcements and Events
 

A Response: The Child in International Refugee Law

Published on September 1, 2017        Author: 

I am grateful to each of the participants for engaging with The Child in International Refugee Law in such a thoughtful way.

As all four contributions have identified, the central thesis of The Child in International Refugee Law is that the the Convention on the Rights of the Child (“CRC”) has a critical role to play, alongside the 1951 Refugee Convention, in enhancing the visibility and protection afforded to refugee children. Rather than simply asserting a need for greater interaction between the 1951 Refugee Convention and the CRC, the book attempts to map out the substantive contours of that relationship, and to anchor the relationship in the international rules of treaty interpretation.

In his contribution, Bjorge engages with the book’s treatment of the international rules of treaty interpretation, and in particular the argument developed in Chapter 1 that these rules should be drawn upon to promote greater engagement with the CRC as an interpretative aid to inform the interpretation of the 1951 Refugee Convention refugee definition. I agree with everything that he has said. Bjorge agrees, perhaps unsurprisingly (see, e.g. The Evolutionary Interpretation of Treaties (OUP, 2014)), that Articles 31-33 of the Vienna Convention on the Law of Treaties (“VCLT”) require a systemic approach to the interpretation of the 1951 Refugee Convention and that such an interpretative approach is, on the whole, likely to be beneficial for refugee children. However, he raises a sage warning that a systemic approach to treaty interpretation can, particularly in today’s unfortunate political climate, be used opportunistically by States to reduce rather than strengthen the protection afforded by the 1951 Refugee Convention. In these circumstances, says Bjorge, “it may well be that literalism or textual interpretation is rather better than its reputation”. Read the rest of this entry…

 
Comments Off on A Response: The Child in International Refugee Law