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Foreign Jurists in the Colombian Special Jurisdiction for Peace: A New Concept of Amicus Curiae?

Published on December 19, 2017        Author:  and

One year after the conclusion, on 24 November 2016, of the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army), the implementation of that Agreement now enters a decisive phase. That Agreement was reached after the rejection of the first version of 24 August 2016 by a slim majority of 50.2% of votes. Last month, the Constitutional Court, by unanimous vote, approved the constitutional reform that implements the Agreement through a special legislative act (Acto Legislativo 01 of 4 April 2017). However, the Court objected to some articles concerning the Special Jurisdiction for Peace ( SPJ or JEP – Jurisdicción Especial para la Paz) which is the judicial cornerstone of the Agreement. The judges of the JEP have recently been selected in a transparent and competitive procedure by a fully independent and mixed Selection Committee (Comité de Escogencia).

While the Final Agreement no longer provides for foreign judges – this was one of the points that proved unacceptable to those who opposed the original Agreement, led by former President Uribe – these have now been substituted by foreign jurists called amici curiae. These, too, were recently selected by the Comité de Escogencia on 6 December 2017, with10 in total for the two JEP organs (four for the “Tribunal para la Paz” and six for the “Salas de Justicia”) with two reserve amici for each organ (the first author of this blog was selected for the Tribunal for Peace). However, it is not quite clear what role these amici will ultimately play before the JEP. We will argue in this post that the Colombian concept of amicus curiae differs from the usual international understanding. This can be explained by the particular Colombian context, where, on the one hand, the parties to the Peace Agreement favored the participation of foreign judges in the JEP, but, on the other hand, the strong opposition to the agreement forced the government to even limit the influence of the substitute foreign jurists (amici). While the ‘Colombian model’ is unique and innovative, only practice will show whether the foreign jurists are mere advisors to the different JEP organs or if they will be able to play a more important and influential role by directly participating in the deliberation of the exclusively Colombian judges. Read the rest of this entry…

 

Announcements: CfS Max Planck Institute; Odysseus Academic Network Annual Conference; Economic and Social Rights Tools; International Investment Law and Constitutional Law Workshop; UN Audiovisual Library of International Law

Published on December 17, 2017        Author: 

1. Call for Submissions: Max Planck Institute for Comparative Public Law and International Law. The Max Planck Institute for Comparative Public Law and International Law invites the submission of proposals for a panel entitled “The Authoritarian Pushback and the Resilience of International Institutions” at the upcoming ICON Society annual conference in Hong Kong. More than a decade after the emergence of public law approaches to international institutions, such as Global Administrative Law, Global Constitutionalism, or International Public Authority, the international system has changed dramatically. The panel will address several research questions that emerge from this situation: How does the authoritarian, nationalist pushback change international institutions, including international courts, and how do these changes affect their problem-solving capacity? How does the authoritarian, nationalist pushback affect the legitimacy of international institutions, including international courts? How resilient are international institutions, including international courts, against the authoritarian, nationalist pushback, and which strategies do they adopt? Scholars of all levels are invited to submit proposals of up to 500 words by 20 January 2018 to ipa2018 {at} mpil(.)de. Successful applicants will receive financial support for their travel expenses of up to 1000 euros.

2. Odysseus Academic Network Annual Conference. The Odysseus Academic Network is organising its annual Conference on 1 February 2018 in Brussels, under the title “Conflict and Compromises between Law and Politics in EU Migration and Asylum Policies”. This event is an opportunity for academics and policy makers to exchange views on the current developments in the field of EU migration and asylum law and policy and beyond. For further information on the Conference, see here.   Read the rest of this entry…

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The International Criminal Court Gets Jurisdiction Over the Crime of Aggression

Published on December 15, 2017        Author: 

The Assembly of States Parties to the Statute of the International Criminal Court has, overnight (New York time), adopted a resolution which activates the jurisdiction of the Court over the crime of aggression. This was the culmination of intense negotiations at the ICC’s 16th ASP which has been meeting in New York over the past 2 weeks. Indeed, activation of the crime of aggression today brings to a close negotiations which have taken place over decades regarding the jurisdiction of the Court over that crime. States Parties agreed in Rome in 1998 to include the crime of aggression in the ICC Statute but suspended ICC jurisdiction over the crime until they could agree on a definition and conditions for the exercise of jurisdiction. This they did at the Kampala Review Conference in 2010 but again agreed to suspend jurisdiction over the crime until at least 30 States had ratified or accepted the amendments, and until a decision of the ASP to activate jurisdiction with that decision not to take place before 1 January 2017. So, activation of jurisdiction was the final step in a long journey and it was this momentous step taken by the ASP overnight.  The text of the resolution adopted, by consensus, is available here. By paragraph 1, the ASP

“Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018.”

This means the Court will be able to exercise jurisdiction over aggression 20 years, to the day, after the adoption of the ICC Statute in Rome in 1998.

The key issue that divided the parties leading up to the ASP and was whether the Court would be able to exercise jurisdiction with respect to the crime of aggression over the nationals of states parties to the Statute who have not ratified the aggression amendments and who also do not opt out. Many states, led by Liechtenstein, had taken the view that nationals of such states would be subject to the Court’s jurisdiction if they committed the crime of aggression on the territory of a state party that had ratified or accepted the Kampala Amendments (the wide view). However, another group of states, led by the UK, France, Japan, Canada, Norway, Colombia had taken a narrow view. They argued that in the case of state referrals or proprio motu investigations the Court would not have jurisdiction over aggression committed by nationals of non-ratifying states or on their territory. The competing arguments on this question were set out in previous posts by me (arguing for the narrow view) and by Stefan Bariga (arguing for the wide view). Ultimately, after very fraught negotiations on this issue, which extended well into the night and beyond the original time scheduled for completion of the ASP, the ASP adopted a resolution confirming the narrow view. Read the rest of this entry…

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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!  

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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…

 
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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…

 
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