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Home Articles posted by Antonios Tzanakopoulos

Here Comes the Name Again: Treaty Making at the Epicenter of the Greek Debate over the agreement with the former Yugoslav Republic of Macedonia

Published on June 16, 2018        Author: 
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This week, the Prime Ministers and Foreign Ministers of Greece and the former Yugoslav Republic of Macedonia reached agreement over the long running dispute regarding the name of the latter. After independence from the Socialist Federal Republic of Yugoslavia, the former Yugoslav Republic continued to use the name it had used as an entity within Yugoslavia, namely the Republic of Macedonia. Greece objected strongly to the use of this name and over the last 25 years or so we have seen sanctions imposed, Security Council Resolutions with provisional designations, an Interim Accord in 1995 and a case before the ICJ which culminated in a 2011 decision finding a violation of that Accord on the part of Greece due to its objections to fYR Macedonia being invited to join NATO in late 2008.

The agreement provides for the use erga omnes of the name ‘Republic of North Macedonia’ as the name of fYR Macedonia, makes provision for other eventualities, such as adjectival uses, commercial brands and designations, and cooperation between the two states in various areas including defence, and seemed to have finally brought resolution to this bizarre dispute. Not so fast. In the last few days, provisions of the Vienna Convention on the Law of Treaties and general international law regarding treaty making powers and the process of signature, ratification, and entry into force, have made their way to the epicenter of the Greek debate over the matter. In an article on 11 June 2018 in the Greek conservative daily Kathimerini[link in Greek], Georgios Gerapetritis, a Professor of Public Law at the University of Athens, argued that by signing the agreement, the Greek Prime Minister (or, as the case actually is, the Foreign Minister) would be binding Greece to the obligations under the Convention irrespective of its (domestic) ratification by the Greek Parliament, which only serves to introduce the treaty into domestic Greek law. This would expose Greece to international responsibility.

 

The argument is flawed. Read the rest of this entry…

 
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Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case.

Published on July 10, 2017        Author:  and
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In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.

Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case. Read the rest of this entry…

 

Can the International Court of Justice Decide on the Chagos Islands Advisory Proceedings without the UK’s Consent?

Published on June 27, 2017        Author:  and
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As Marko has noted in this post, last week Thursday, the UN General Assembly adopted a resolution requesting the International Court of Justice provide an advisory opinion on the legality of the separation by the United Kingdom of the Chagos Archipelago from the colony of Mauritius prior to the grant of independence to Mauritius by the UK in 1968. Under Article 96 of the UN Charter, the General Assembly can request from the ICJ an advisory opinion on “any legal question.” However, in the process leading to the adoption of the General Assembly resolution, the UK argued that the question put to the Court is essentially about a bilateral dispute between States, and that it is inappropriate for the ICJ advisory opinion procedure to be used to obtain adjudication of a bilateral dispute between states that have not consented to ICJ jurisdiction over that dispute (see summary of debate here and UK statement here). As Marko noted in his post, the Assembly resolution is drafted so as to try to demonstrate that the matter is not (or not just) a bilateral dispute over sovereignty to the Islands but rather a question of self-determination within the remit of the General Assembly. Undoubtedly, the question of the Court’s competence to render the opinion, and of the appropriateness of doing so will be raised again before the Court. This post focuses on the role of state consent in the Court’s advisory jurisdiction, and explores the previous jurisprudence of the Court on whether it can render an advisory opinion which requires it to pronounce on the obligations of states and in particular to pronounce of disputes between states. A key preliminary question the Court will be faced with in the Chagos Islands advisory opinion is whether it (the ICJ) should, for the first time, exercise its discretion not to give an advisory opinion on the ground that the request offends against the principle requiring consent for international adjudication of inter-state disputes. If it does that, the Court would be following a decision of the Permanent Court of International Justice refusing to give an opinion on such grounds.

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The Greek Sovereign Debt Crisis, the Right to be Free from Economic Coercion, and the Greek Election

Published on September 16, 2015        Author: 
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People gathered at the ‘NO’ rally ahead of the Greek Referendum in early July.

The Greek sovereign debt crisis has occasioned much discussion on a number of issues that are of interest to international lawyers, in particular after the 25th of January 2015, when the left-wing SYRIZA party (Greek acronym of the full name, literally the ‘Coalition of the Radical Left’), having won the election by some considerable margin, formed a government whose strategy was to challenge Greece’s creditors over the much despised (in Greece, that is) Greek bailout programme. These issues include: the question of the odiousness of Greek debt (and whether it can be repudiated; interestingly the UN GA passed a Resolution on 11 September 2015 regarding the ‘basic principles on sovereign debt restructuring processes’, during the vote for which the caretaker government of Greece opted to abstain), the issue of German reparations and of the compulsory war loan of 1942, as well as the issue of economic coercion into a new bailout agreement (commented on here) which Greece accepted in July and August 2015 (and which led to the splintering of the governing party and to fresh elections scheduled for September).

In this post, just ahead of the snap election that has been called for 20 September 2015, I will briefly discuss the bailout programme between 2010 and 2014 and explain the arguments on the basis of which it was challenged by the SYRIZA-led government (section I). Then I will describe the negotiation which led to the new agreement, which has been seen (in many circles at least) as an attempt at regime change in Greece (section II). Finally, I will argue that this episode does not constitute unlawful economic coercion, as there is no right of a State to be free from economic coercion in international law (section III). That subject I treat in much more detail in a paper written for the project led by Dan Joyner and Marco Roscini on the ‘Fundamental Rights of States’. The paper is now available on SSRN and will appear, along with other relevant papers, in a special issue of the Cambridge Journal of International and Comparative Law.  Read the rest of this entry…

 
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The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

Published on October 7, 2014        Author: 
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The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

Read the rest of this entry…

 

Challenging (Some) Stereotypes and the DNA of (International) Law

Published on April 24, 2014        Author: 
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Karen Alter has written an important and useful book surveying the ‘new terrain’ of international law. The book straddles international law and international relations/political science, and thus readers on both sides of the fence may find it a challenging read—as Karen herself acknowledges in the Preface. But this is not the only reason why readers may find the book challenging: its stated intention is to challenge stereotypes about international courts, and to demonstrate through the emergence of ‘new-style’ courts that we are moving from a contractual understanding of international law to a rule of law mentality. This is because ‘new-style’ courts do not engage solely in (bilateral) dispute settlement but rather also undertake public law functions such as enforcement, administrative review and constitutional review. I fully subscribe to Nico Krisch’s comments on how these functions interact (and have always interacted).

In this short comment I want to focus on the book’s central claim, not so much to summarily disagree with it—in fact to some extent I agree with the claim—but rather to highlight why I think it might be glossing over some important issues from the perspective of international law. Such glossing over may weaken the central claim, which is made with great force. As a (self-proclaimed) positivist international lawyer I found some of the arguments on which the central claim is based hard to digest.

The first point that I want to raise is about the ‘contractual’ paradigm of international law (and dispute settlement) and the move to a ‘rule of law’ paradigm (and public law functions). I should say at the outset that I find terms like ‘rule of law’ inherently suspicious, precisely because they operate as shibboleths for something good without having any agreed content—except perhaps in the broadest possible sense. More on this below. But there is also a problem with the contractual paradigm and ‘new-style’ international courts as an indicator of moving away from it. Well, we are and we aren’t moving away from it, for one, and it is not international courts that predominantly signify whatever move there is, in my view.

Whether we are moving away from a contractual conceptualisation of international law, and whether this is a new development signified by the rise of ‘new-style’ courts depends, first, on what we understand as such a contractual paradigm. Karen seems to be focusing a lot on treaty obligations (which in the first instance are contractual in the broadest sense) and indeed on reciprocal obligations, even arguing at some point that the violation of a contractual obligation ‘dissolves’ the counterparty’s obligation—which it does not, and in any event not automatically. But we have been moving away from this narrowly-conceived contractual paradigm since the late 40s; suffice it to mention here the Reservations to the Genocide Convention Advisory Opinion and the Barcelona Traction Judgment, to take just examples from the oldest-style permanent court you could imagine – the ICJ. The point is that this has not really translated in any significant change in locus standi for actors other than (directly injured) States except in the example of the very particular courts that Karen deals with in her book. Read the rest of this entry…

 

Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ

Published on July 19, 2013        Author: 
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I. Introduction

After more than a decade on the UN 1267 sanctions list, Yassin Abdullah Kadi was delisted by the UN 1267 Committee on 5 October 2012, following review of a delisting request he had submitted through the Office of Ombudsperson: a mechanism established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011)—and a mechanism which the Kadi cases before the European Union courts (along with some others in domestic courts, such as Nada, Abdelrazik, Hay, Ahmed, etc) pushed to create.

Kadi’s delisting came at a time when the European Commission, the Council of the EU, and the UK were pursuing an appeal against the General Court’s decision in Kadi II. This was the decision striking down Kadi’s re-listing by the EU following the annulment of the Regulation listing him for the first time by the ECJ in Kadi I (for comment see here). And yet the appellants did not give up their appeal. It was not just that the delisting came shortly after oral argument before the ECJ had been concluded; they also wanted a decision on the serious issues raised in Kadi II, in particular the question of the standard of review that EU courts will apply in reviewing UN-imposed terrorist sanctions against named individuals and legal entities. The importance of this jurisprudence for future cases is obvious.

The Grand Chamber of the ECJ delivered its decision on the Kadi II appeal on 18 July 2013. It upheld the decision of the GC striking down the Regulation relisting Kadi, even if it did overturn part of the GC reasoning. Most notably, it affirmed that it will continue to review EU listings implementing strict Security Council obligations in the face of lack of equivalent control at UN level, it insisted on a rather strict standard of review of such listings, and it undertook—for the first time—substantive review of the reasons for listing offered by the EU (which were in fact merely those offered in the terse ‘narrative summary of reasons for listing’ that the Security Council released). Read the rest of this entry…

 

Call for Papers: ILA Study Group on Domestic Courts and International Law

Published on May 5, 2013        Author: 
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The ILA Study Group on ‘Principles on the Engagement of Domestic Courts with International Law’ has issued a call for papers. Those selected will be invited to participate in the discussion of their papers by the Study Group, and will be potentially included in a relevant publication. The deadline for submission of proposals is the end of May. Full details can be found on the Study Group’s website, and the call may be directly downloaded (pdf) here.

 
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Sharing Responsibility for UN Targeted Sanctions

Published on February 14, 2013        Author: 
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Cross-posted from the SHARES Blog

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as KadiNada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice. Read the rest of this entry…

 
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Kadi and the Solange Argument in International Law

Published on January 15, 2013        Author: 
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Antonios Tzanakopoulos is University Lecturer in Public International Law at the University of Oxford and Fellow of St Anne’s College, Oxford.

It is a pleasure to have been invited to contribute to the discussion of the article by Juliane Kokott and Christoph Sobotta on balancing constitutional core values and international law against the background of the Kadi case. At the outset I must state that I find myself in broad agreement with what I understand to be the authors’ central argument: ie that the CJEU (or ECJ) employed a variant of the Solange argument, if implicitly, in its Kadi judgment of 2008. I have in fact also argued this in a paper I presented in Oslo in 2009, which appeared in print in January 2012 (here) and indeed on this blog (here and here). I would kindly ask readers (if any) to also read the latter blog posts, as the present comment builds on the premises there laid out.

I will proceed with the discussion of three major issues that arise from the authors’ discussion of Kadi as a balancing exercise between constitutional core values and international law. The first issue refers to the perceived ‘dualism’ of Kadi and consequently of any attempt to employ a Solange argument. The second issue deals with the content of the Solange argument, in particular with the rules it seeks to establish and / or safeguard. And the final issue deals with the justification of the Solange argument in (international) law and the ‘battle for the analogy’. Read the rest of this entry…

 
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