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Comments on ITLOS, M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures Order (6 July 2019)

Published on July 31, 2019        Author: 

Introduction

On July 6, 2019, International Tribunal for the Law of the Sea (ITLOS) delivered its provisional measures order in the M/T “San Padre Pio” case between Switzerland and Nigeria. The summary of the case is available here. In short, the Nigerian navy intercepted and arrested the M/T “San Padre Pio,” a motor tanker flying the flag of Switzerland, while it was engaged in one of several ship-to-ship transfers of gasoil in Nigeria’s exclusive economic zone (EEZ). The Master and the three officers were detained in prison before they were released and returned to the vessel upon the provision of bail (see Order, paras. 30-41). The Tribunal prescribed that (a) Switzerland shall post a bond or other financial security; (b) Switzerland shall undertake to ensure that the Master and the three officers are available and present at the criminal proceedings in Nigeria, if the Annex VII arbitral tribunal finds Nigeria’s measures do not constitute a violation of the Convention; and (c) Nigeria shall immediately release the vessel, its cargo and the Master, and the three officers to leave the territory and maritime areas under the jurisdiction of Nigeria (Order, para. 146).

Provisional measures are designed to protect the rights of the parties pending the final decision in a dispute. The Convention provides that the measures shall be appropriate to the circumstances so as to preserve the rights of the Parties pending the final decision of the Annex VII arbitral tribunal (UNCLOS, Article 290(1)), and the order has to be prescribed only when the urgency of the situation so requires (ibid, Article 290(5)). It follows that the Tribunal shall ensure that the rights of the two parties are equally preserved and shall not prejudge the question of the jurisdiction of the Annex VII arbitral tribunal or the merits themselves.

However, this order demonstrated the Tribunal’s willingness to take a pro-active approach to provisional measures yet again. While this tendency was already pointed out when the Arctic Sunrise provisional measures order was prescribed (see Guilfoyle & Miles, p.272), the present case seems to have further expanded its reach. The rest of this Post will examine (1) whether the Tribunal’s assessment of the urgency test was consistent with Convention and previous cases; and (2) whether the Tribunal’s decision equally preserved the rights of state parties. Read the rest of this entry…

 
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Why Lagarde’s ECB Appointment is (Almost Certainly) Unlawful

Published on July 30, 2019        Author: 

On 2 July, after three days of infighting and political horse-trading, the European Council reached an agreement on appointments to the EU’s ‘top jobs’. To say that these have been controversial would be an understatement, not least because of the process leading to the appointments. The Council’s decision was reached behind closed doors. There was no public scrutiny of the appointees or their agenda for the Union. The European Parliament was all but ignored, as the Council defied the ‘Spitzenkandidaten’ process to appease the leaders of the Visegrad Group. Even the very liberal and pro-EU Guardian conceded that this isn’t an obvious advertisement for the project.

A lot has already been written on the controversies surrounding the four appointees, including the ongoing probe into von der Leyen’s awarding of contracts at the German’s defence ministry and the various corruption allegations against Josep Borrell, the Council’s pick for the role of High Representative for Foreign Affairs. However, Christine Lagarde – chosen to head the European Central Bank – has been largely immune from those controversies. In this post, I argue that insufficient attention has been paid to the fact that Lagarde was actually convicted of a criminal offence for her role in a major financial fraud case and that this raises serious questions regarding the legality of her appointment. Following a brief summary of Lagarde’s role in the Tapie Affair, I examine the rules governing the appointment of the ECB President under the EU Treaties. Other sources of law may be envisaged, such as general principles of EU or global administrative law. But these are beyond the purview of this post and, as will become apparent, my view is that there is sufficient ground under the EU treaties to argue that Lagarde’s criminal conviction renders her appointment invalid and thus liable to judicial review and annulment. Read the rest of this entry…

 

The Colombian Constitutional Court Judgment C-252/19: A new frontier for reform in international investment law

Published on July 29, 2019        Author: 

On 6 June 2019, the Colombian Constitutional Court announced its long-awaited decision (made public 2 July 2019) regarding the constitutionality of the 2014 Colombia – France Bilateral Investment Treaty (BIT). Using an innovative line of reasoning, the Colombian Court did not only rule on whether or not this text was constitutional. It further declared the BIT to be “conditionally constitutional” [condicionalmente exequible], requiring the issue of a joint interpretative note that would clarify the meaning of several standards of treatment contained in the BIT.  

This is not the first time that a constitutional adjudicator has analyzed international investment agreements. In Europe, for instance, resistance to International Investment Agreements (IIAs), such as the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), has been framed in constitutional terms. However, there are several factors which point to the importance of this judgement not only for the two countries involved but also, more broadly, for the way multilateralism is understood.

The Court decision and the remedy of ‘conditioned constitutionality’

On 10 July 2014, France and Colombia signed a BIT in order to establish a legal framework for foreign investment. In line with updates to other investment agreements in recent years, the revised Colombia – France BIT incorporates a series of features that aim to protect the regulatory space of states. However, the treaty also contains clauses that have been criticized (see here) for not protecting the interests of a developing state such as Colombia.

After a detailed analysis of all the provisions in the BIT and the arguments for and against the declaration of constitutionality, the Court decided that the treaty was compatible with the Colombian Constitution. However, for some clauses of the BIT, it made the declaration of constitutionality conditional on the implementation of a future interpretative declaration of the two countries that would clarify the meaning of the words used to draft substantive standards of treatment.  The Court sketched its methodology in the following way: Read the rest of this entry…

 

Announcements: CfS Cambridge International Law Journal; AUWCL LLM in Human Rights and Humanitarian Law

Published on July 28, 2019        Author: 

1. Call for Submissions: Cambridge International Law Journal. The Editorial Board of the Cambridge International Law Journal (CILJ) is pleased to invite submissions for its ninth volume (issues to be published in June and December 2020). The Board welcomes long articles, short articles, case notes and book reviews that engage with current themes in international law. All submissions are subject to double-blind peer review by the Journal’s Editorial Board. In addition, all long articles are sent to the Academic Review Board, which consists of distinguished international law scholars and practitioners. Submissions can be made at any time. Articles submitted by 30 September 2019 will be considered for Volume 9 Issue 1. Any articles submitted after this date will be considered for the following issues. For full submission instructions, please see here.  Submissions can be made for Volume 9 here. Alternatively, blog articles can be submitted here. Further information can be obtained from the Editors-in-Chief at editors {at} cilj.co(.)uk.

2. American University Washington College of Law LLM in in Human Rights and Humanitarian Law. The American University Washington College of Law (AUWCL) LL.M. in Human Rights and Humanitarian Law will be offering the LL.M. in residence program starting this fall. The program is designed to provide both solid doctrinal theoretical studies and practical skills. The curriculum will be focused on over 50 human rights doctrinal courses offered every year. In addition, American University Washington College of Law offers a curriculum based on experiential education that allows students to acquire hands-on experience through externships, internships and research opportunities with human rights faculty and other experts. Deadline to apply is 1 October, classes start January 2020.

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An International Investment Advisory Center: Beyond the WTO Model

Published on July 26, 2019        Author: 

Establishing an international investment advisory center is now a priority for many states.  UNCITRAL Working Group III has put the issue at the top of its agenda for ISDS reform.  The European Commission is considering an advisory center for its proposed Multilateral Investment Court.  The Netherlands government has commissioned a feasibility study.

Thinking about an international investment advisory center naturally starts with the Advisory Centre on WTO Law (ACWL).  Established in 2001, the ACWL is the “first true center for legal aid within the international legal system.”  It seeks to level the playing field by giving developing states the same in-house capacity that developed states enjoy.  The ACWL provides developing states with training, confidential advice on WTO law, and assistance or financial support during WTO dispute-settlement proceedings.  The center receives funding from developed and developing states, including voluntary contributions and (below-market) fees from dispute-settlement proceedings.  Two decades on, the ACWL has established itself as an integral part of the WTO dispute settlement system, playing “a crucial role in maintaining a viable and credible rules-based multilateral trading system.” 

But is the ACWL the right model for an international investment advisory center?  Unlike the WTO regime, the international investment regime is decentralized.  There is no global treaty on investment protection, no global forum for addressing all investment-related issues, and no global institution to help states avoid, manage, and resolve investment disputes efficiently and effectively.  Instead, each State—developing and developed—must devise its own approach to foreign investment and devote the human and financial resources necessary to comprehend, navigate, and develop that regime.

The decentralized nature of the international investment regime has important consequences.  States often struggle to comprehend and comply with their international investment commitments across all levels of government, making it difficult to avoid or settle investment disputes.  Many states lack significant expertise with investment arbitration, making it difficult to defend themselves effectively, or proactively shape the development of international investment law.  States’ frequent reliance on external counsel may hinder the development of in-house government legal capacity essential to establishing coherent and consistent national treaty practice. A cycle of uncertainty, inexperience, and incapacity has bred discontent with the current regime, threatening its legitimacy.  Viewed from that perspective, an international investment advisory center focused primarily on helping developing-state respondents in investment arbitration may fail to address underlying needs and broader concerns.

Broad Participation, Maximum Impact, Minimum Cost

A successful advisory center could help fill six gaps in the international investment regime: Read the rest of this entry…

 
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Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international human rights obligations

Published on July 25, 2019        Author: 

On the first day of July, Hong Kong celebrates Establishment Day, which commemorates the 1997 transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China. Establishment Day for Hongkongers is customarily accompanied by political protests. The widely reported 2019 protests are the direct result of a proposed amendment to the Fugitive Offenders Ordinance (‘FOO’). The proposed amendment, if passed, would open up the possibility of extradition to mainland China.  Although the proposed amendment was declared “dead” by Hong Kong’s Chief Executive, Carrie Lam, there is real possibility that, at one point or another, the bill will be reincarnated since under Hong Kong law a bill can be suspended or withdrawn and it is not clear that the declaration declaring it dead does either of these. As a result, people have kept pouring into the streets calling for Carrie Lam to step down, making the issue of continuing relevance.

One major point of contention of the proposal concerns the protection of human rights of those subject to transfer to China. NGOs such as Amnesty International and Human Rights Watch point out China’s deplorable human rights protection. While the PRC’s poor human rights track record has been documented extensively, in this contribution I wish to clarify how the amendment bill could result in a situation in which Hong Kong incurs responsibility under international human rights law – in particular article 7 ICCPR – when extraditing persons to the PRC. I do so by first discussing the proposed amendments to the FOO. Second, by explaining the international human rights standards that govern extradition and by which Hong Kong is bound (mainly the torture prohibition), I show how the proposal lacks the safeguards necessary to ensure adequate protection against torture and inhuman and degrading treatment.

Proposed amendments to the Fugitive Offenders Ordinance

The government’s justification for tabling the FOO amendment proposal lies in a brutal 2018 murder case in which a Hong Kong man killed his girlfriend while vacationing in Taiwan and fled back to Hong Kong. The Taiwanese authorities, quick to connect the dots, issued an extradition request to Hong Kong, but received no reply. The absence of action on the part Hong Kong can be explained by two alleged loopholes in the FOO: Read the rest of this entry…

 

New EJIL: Live! Interview with Dr Sarah Nouwen

Published on July 24, 2019        Author: 

This episode of EJIL: Live! introduces EJIL’s new joint Editor-in-Chief, Dr Sarah Nouwen. Currently a University Senior Lecturer at the University of Cambridge and recently appointed as Professor of International Law at the European University Institute in Florence, Italy (starting September 2020), Dr Nouwen speaks with Professor Joseph Weiler about her own academic trajectory, her research interests and her approach to teaching. The conversation then moves on to a reflection on the state of research and the study of international law – its challenges, problems and promises. Finally, Dr Nouwen shares her thoughts and ideas for the future of EJIL and offers some advice for young scholars. The interview was recorded at the IE Law School in Madrid. EJIL: Live! is the official podcast of the European Journal of International Law (EJIL), one of the world’s leading international law journals. Regular episodes of EJIL: Live! are released following the publication of each quarterly issue of the Journal, and include interviews with the authors of articles appearing in that issue as well as a wide variety of news and reviews when possible. Additional episodes, EJIL: Live! Extras, are also released from time to time to address a range of topical issues. Episodes of EJIL: Live! can be accessed via the EJIL website and on this blog. Comments and reactions to EJIL: Live! episodes are welcome, and may be submitted to this blog.

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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

 
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New Issue of EJIL (Vol. 30 (2019) No. 2) – Now Published

Published on July 22, 2019        Author: 

The latest issue of the European Journal of International Law (Vol. 30 (2019) No. 2) is now out. 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. The free access articles in this issue are Isabel Feichtner and Surabhi Ranganathan’s International Law and Economic Exploitation in the Global Commons: Introduction and Surabhi Ranganathan’s Ocean Floor Grab: International Law and the Making of an Extractive Imaginary. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

 
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Best Practice – Writing a Peer-Review Report

Published on July 22, 2019        Author: 

The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with ‘objective’ quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in ‘peer-reviewed’ journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.

Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 per cent – oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in EJIL and I.CON undertake to peer review for our journals, an undertaking not always honoured. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.

Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as 24 weeks, after a slew of ‘gentle’ and somewhat less gentle reminders. Read the rest of this entry…

 
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