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Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War

Published on December 13, 2017        Author: 

On 2 April 1982 Argentina invaded the Falkland Islands (alternatively, the Islas Malvinas). The resulting conflict lasted 74 days and claimed the lives of 255 UK military personnel and 652 Argentine servicemen. The conflict raises a myriad of legal issues but at its core is the issue of sovereignty (here). However complicated the issue, disputes over sovereignty did not legally authorise the Argentine invasion (see UNSCR). This post will not go over the vexed issue of sovereignty but will instead focus on two select issues relating to the conduct of hostilities. The Falklands War has largely receded from thought but lingering doubts over the legality of a Total Exclusion Zone (TEZ) established by the UK and its torpedoing of the Belgrano endure. By focusing on the issue of zones and the concept of proportionality this post will seek to provide clarity to two often misunderstood areas of law that are of vital importance to contemporary military operations.

The UK Total Exclusion Zone

A few days after the Argentinian invasion the UK issued a notice indicating that, from 12 April 1982, a Maritime Exclusion Zone (MEZ) would be in force, extending 200 nautical miles from the centre of the Falklands. On 28 April, the UK declared a TEZ that encompassed the same geographical area as the MEZ but was broader in scope regarding ratione personae.  In essence, the TEZ stated that any ship or aircraft entering the TEZ that was not authorised to be there by the UK Ministry of Defence was deemed to be operating in support of the occupation, regarded as hostile, and therefore liable to attack. Read the rest of this entry…

 

UNCITRAL and ISDS Reform: Pluralism and the Plurilateral Investment Court

Published on December 12, 2017        Author: 

As described in a previous post, the UNCITRAL mandate on the possible reform of investor-state dispute settlement (ISDS) requires states to first identify and consider concerns regarding ISDS before going on to consider and develop any relevant reforms. Although states in the November 2017 session did not debate potential reforms, different solutions lurked in the room like elephants, often seeming to inform the positions taken by various delegations on whether particular issues (such as inconsistency) amounted to “problems.”

In particular, a division appeared to be evident between some states that seem inclined (at least presently) toward incremental, bilateral reforms (such as the US and Japan) and others that openly embrace systemic, multilateral reform (such as the EU and Canada). This positioning reflects broader dynamics about debates over ISDS reforms, in which the issue is often framed as a comparison of the relative merits of investor-state arbitration and a multilateral investment court with states staking out positions as loyalists or reformists respectively.

This dichotomy is false and unhelpful, however, because it presents ISDS reforms as requiring a binary choice. To start with, these are not the only choices. In addition to states that favour incremental and systemic reforms of the existing system, there are states that reject the need for international claims by investors at all. These revolutionaries include Brazil, which has embraced an Ombudsman model followed by state-to-state dispute settlement, and South Africa, which has opted primarily for protection via national legislation and courts. Read the rest of this entry…

 

UNCITRAL and ISDS Reform: Not Business as Usual

Published on December 11, 2017        Author: 

In late November 2017, states from around the world convened in Working Group III at UNCITRAL in Vienna to begin debates about the possible reform of investor-state dispute settlement (ISDS). In accordance with the UNCITRAL mandate (see  Annotated Provisional Agenda) that was given in July 2017:

The Working Group would proceed to: (i) first, identify and consider concerns regarding ISDS; (ii) second, consider whether reform was desirable in light of any identified concerns; and (iii) third, if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission.

I attended the Working Group III meetings as an independent legal expert on the Australian delegation, though anything I write is attributable to me personally not Australia. Given the potential importance of these reform efforts, and the public interest in them, this post marks the first in a series that seeks to explain and contextualise the UNCITRAL ISDS reform process. These posts are consistent with the mandate’s call for the process to be “fully transparent” (see  Annotated Provisional Agenda). Recordings of the session are also available online.

The UNCITRAL debates on ISDS reforms are highly political. On an international level, states have split on whether to embrace ISDS and, if so, whether international claims by investors would be better heard by ad hoc arbitral bodies or a permanent investment court. On a domestic level, ISDS has proved highly controversial in a number of states, resulting in strong pushback. Dealing with such a highly charged issue is certainly not “business as usual” for UNCITRAL. This was evident in the November meetings in two key ways. Read the rest of this entry…

 

Announcements: UN Audiovisual Library of International Law; CfP International Law and Human Rights Unit Conference; Seventh Annual Junior Faculty Forum for International Law

Published on December 10, 2017        Author: 

1. New Additions to the UN Audiovisual Library of International Law. To commemorate International Human Rights Day and the upcoming 70th anniversary of the Universal Declaration of Human Rights, the Codification Division of the Office of Legal Affairs added a two-part interview with Judge Thomas Buergenthal by Professor Sean Murphy. In this interview, Judge Buergenthal shares some personal moments from his life as well as his extensive experience in international law and, in particular, his invaluable contribution to the development of international human rights law. All interested parties are invited to visit the United Nations Audiovisual Library of International Law to watch the interview, which will not only educate but inspire present and future generations of lawyers around the world.

2. Call for Papers: The International Law and Human Rights Unit Conference. The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, welcomes paper, poster and ‘soapbox’ proposals for its Second Postgraduate Conference in International Law and Human Rights. The conference will take place on 26-27 March 2018. The theme of the conference is: ‘The Notion of Change in International Law and Human Rights’. The conference theme should be broadly conceived, and we encourage proposals from any postgraduate student specialising in international law, human rights or related subjects. The conference offers a unique opportunity for postgraduate/doctoral students to present and discuss their work in a stimulating and friendly academic environment, among peers with similar research interests. Abstracts of no more than 300 words can be sent to ilhrucon {at} liverpool.ac(.)uk, along with a short biography (100 words). The deadline for submissions is 12 January 2018. Please see here for more information about the conference theme and call for papers. 

3. Deadline for Applications for Seventh Annual Junior Faculty Forum for International Law. Applications for the Seventh Annual Junior Faculty Forum for International Law are due on 15 December 2017. The Forum will be convened by Anne Orford (Law – Melbourne), Dino Kritsiotis (Law – Nottingham) and J.H.H. Weiler (Law – NYU) and will be held at the University of Melbourne in May next year (28 – 30 May 2018). Full details of the application process are available on the Forum website. Applications are welcome!  

Filed under: Announcements and Events
 

New EJIL: Live! Interview with Merris Amos on her Article “The Value of the European Court of Human Rights to the United Kingdom”

Published on December 7, 2017        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Merris Amos of Queen Mary University of London, whose article “The Value of the European Court of Human Rights to the United Kingdom” appears as the first piece in the “Focus” section on Human Rights and the ECHR in issue 3 of volume 28 of the Journal.

Professor Amos takes up the challenge of articulating the value that the ECtHR adds to the objective of protecting human rights. Moving the focus from legitimacy, Professor Amos presents three different levels where the ECtHR adds value: individual, global and national. This serves as a framework for the discussion on the rise of negative sentiment towards the Council of Europe in the United Kingdom and introduces—as well as debating—the three levels of value added to the United Kingdom by the ECtHR. This conversation accompanies and expands on the article, including conjectures about the future of the European Convention on Human Rights in the United Kingdom.

 
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Brexit and the Transatlantic Trouble of Counting Treaties

Published on December 6, 2017        Author: 

As pointed out by the Financial Times (FT), the UK’s withdrawal from the EU will require the renegotiation of more than 700 international agreements from which the UK currently benefits by virtue of its EU membership. Given the political and economic importance of transatlantic relations for both the UK and EU, the United States is arguably a good place to start when it comes to gaining a deeper understanding of the challenge at hand. As this post argues, before reaching the substantive questions surrounding the new agreements, even determining the number of treaties that may need to be replaced with new U.S.-UK ones is not a straightforward task.

In an address of November 28, 2017, Secretary of State Tillerson urged both sides to move the withdrawal process “forward swiftly and without unnecessary acrimony” and offered “an impartial hand of friendship to both parties”. Meanwhile, the Brexit negotiations are nearing a crucial point in mid-December, when it will be determined whether “sufficient progress” has been achieved for the two sides to start looking to the future—with each other and with strategic partners such as the U.S.

In determining the UK’s post-Brexit “special relationship” with the U.S., some preliminary discussions are already underway. However, the UK will be free to conduct fully-fledged negotiations only once it ceases to be an EU member. In anticipation of the many legal and political questions that these negotiations will raise, a preliminary—seemingly simple—matter would be to establish what the actual treaty relations between the U.S. and EU are. Three comprehensive and authoritative sources can be drawn upon to this end: The U.S. State Department’s Treaties in Force 2017, the EU’s Treaty Office Database, and the FT’s Brexit treaty renegotiation checklist. The only problem is, they do not match up. According to the State Department, there are 31 bilateral treaties in force between the EU and U.S., according to the EU’s Treaty Office, the number is 52, and according to the FT, it is 37. Hence, establishing the extent and content of legal relations affected by Brexit amounts in the first place to an empirical challenge.

In an effort to better understand this challenge, this post will first explain the reasons for (most of) these discrepancies, and subsequently offer its own assessment of the number of treaties. Before doing so, it should be stressed that this analysis focusses on bilateral international agreements only, i.e., agreements between the U.S. and the EU, either with or without the EU’s Members States alongside it. Agreements including additional parties would be categorized as multilateral agreements, of which there is also a significant number involving both the EU and U.S. and which raise additional difficulties, as illustrated recently in the dispute over the post-Brexit splitting of tariff rate quotas at the WTO. Moreover, the analysis focusses on treaties in force, thus excluding treaties pending ratification or those which are being provisionally applied (such as the 2007 Open Skies Agreement). As a final caveat, this post does not delve into any of the many administrative agreements concluded directly between U.S. and EU agencies (see for a useful overview the table compiled by Peter Chase in Daniel Hamilton and Jacques Pelkmans (eds.), Rule-Makers or Rule-Takers: Exploring the Transatlantic Trade and Investment Partnership (2015), pp. 55-60). What this post seeks to show is that even a single bilateral treaty relationship is challenging enough to grasp.

Read the rest of this entry…

 

Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

Published on December 5, 2017        Author: 

On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. Read the rest of this entry…

 

Election Rules for ICC Judges: A Balanced Bench Through Quasi-Quotas

Published on December 4, 2017        Author: 

At its 16th session starting today (Monday 4 December) in New York, the ICC Assembly of States Parties (ASP) will proceed to elect six new judges for the Court. In doing so, the ASP will follow a special procedure that has no precedent in any other international organization, and probably also not in any domestic context. Among the election officers of ICC States Parties, these rules are primarily known for being complicated, to put it mildly. What gets less attention though is the fact that these rules have also been quite successful in achieving their goal: namely of nudging States Parties toward electing a bench of judges that is balanced in terms of regional representation, gender, and legal expertise.

In previous years, I have had the pleasure of facilitating the review of these rules (which resulted in only minor adjustments). In that context, I was tasked to prepare an informal guide to the election rules, so that they could be more easily understood. Pasted below is the brief explanation of the election procedure contained in the guide, which also contains a more detailed commentary of specific provisions.

The idea behind the system (originally developed by my predecessor as legal advisor to the Mission of Liechtenstein in New York, Jonathan Huston) is quite intriguing. It came up as delegations at the ICC PrepComm – tasked with preparing the ground for the future sessions oft he ASP – were deeply divided over how to design the election rules for judges. Some wanted quotas for regions (as is the case for many UN bodies), some wanted additional gender quotas. Others wanted no such restrictions. And then there was also the binding requirement of the Rome Statute to elect a minimum number of judges with certain expertise (criminal law vs. International law). Read the rest of this entry…

 

Announcements: CfP Yearbook on International Investment Law and Policy; Maastricht Conference on Nationalism, Populism and Human Rights; UN Audiovisual Library of International Law; CfP Economic Constitutionalism 

Published on December 3, 2017        Author: 

1. Call for Papers – Yearbook on International Investment Law and Policy. The Columbia Center on Sustainable Investment (CCSI) is pleased to announce a call for papers for the edition of the Yearbook on International Investment Law and Policy covering 2017. Beginning with the 2017 edition, Part One of the Yearbook will include short pieces providing succinct overviews of recent developments and trends in international investment treaties and treaty policy; investor-state dispute settlement; institutional developments; and developments relevant to particular regions or countries. Part Two continues to include detailed analyses or short think pieces on central thematic issues in the contemporary discussions on international investment law and policy. Original contributions to be considered for publication in the Yearbook are accepted on a rolling basis until 1 February 2018. See here for further information. 

2. Maastricht Conference on Nationalism, Populism and Human Rights. This conference will be held on 11 – 12 January 2018 at Maastricht University Faculty of Law, the Netherlands. Keynote speakers: Prof Başak Çalı (Hertie School of Governance), Prof Jean d’Aspremont (Manchester and Science Po), Prof Theo van Boven (Maastricht). The full programme is available here.

3. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Christian J. Tams – “The League of Nations” and Dr. Jean Ho – “La responsabilité d’Etat et la rupture des contrats d’Etat”, “国际法对投资合约的保障”.

4. Call for Papers – Economic Constitutionalism: Mapping its Contours in European and Global Governance. The School of Law at the University of Portsmouth and the European University Institute (EUI) are organising a 2-day international conference to explore the function and nature of economic constitutionalism within broader constitutional processes in the European and global legal orders. The conference will be hosted by the European University Institute in Florence on 14 – 15 June 2018. The deadline for submission of abstracts is 28 February 2018. For more information please visit the conference webpage.

Filed under: Announcements and Events
 

A “Compliance-Based” Approach to Autonomous Weapon Systems

Published on December 1, 2017        Author:  and

A Group of Governmental Experts (GGE) on the topic of Lethal Autonomous Weapons (LAWS) concluded its first meeting in Geneva on 17 November 2017. The meeting was held under the auspices of the Convention on Certain Conventional Weapons (CCW) and built upon on three informal meetings of experts held between 2014 and 2016 (for reports of those meetings, see here). In December 2016, the Fifth Review Conference of the High Contracting Parties of the CCW had tasked the GGE “to explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS” (see Decision 1 here and the agreed recommendations contained in this report).

At the heart of the debate is the question how States should respond to the emergence of such weapons. While some highlight legal, ethical or moral concerns of delegating life and death decisions to machines and advocate for a preventive prohibition of autonomous weapons systems, others pinpoint potential benefits for the way wars are fought in the future and deem any policy options, including regulation, to be premature.

As often in such multilateral discussions, it is hard to make progress and to get all States to agree on a common approach. The topic of autonomous weapon systems is no different. Indeed, perhaps it is particularly difficult because we do not yet fully understand what robotics and artificial intelligence truly harbor for the future of warfare, and for humanity in general. In an initial step, the GGE in its first session affirmed that international humanitarian law (IHL) applies to all weapons, including the potential development and use of autonomous weapon systems, and that responsibility for their deployment remains with States (see report here). This is a welcome step but obviously cannot be understood to exhaust the topic.

In an effort to generate momentum and identify common denominators, Switzerland presented a working paper at the beginning of the GGE, in which it is argued that ensuring compliance with international law, notably IHL, could and should be common ground among States and that this could form a constructive basis for further work. Accordingly, it should, at least as one element, be central to discussions of the GGE about autonomous weapon systems and should figure prominently in the report of the GGE as well as in the way forward. In the following, we recapitulate requirements for compliance with IHL and on that basis identify elements for a “compliance-based” approach aimed at advancing the debate within the CCW in an inclusive and constructive manner. Read the rest of this entry…