Home Articles posted by Frédéric Gilles Sourgens

Paris Agreement Regained or Lost? Initial Thoughts

Published on December 28, 2018        Author: 

Headlines recently announced the end of a critical climate summit in Katowice, Poland.  Katowice had played host to the 24thConference of the Parties meeting (COP24) under the United Nations Framework Convention on Climate Change (UNFCCC).  The summit was billed as a “make or break” moment for the world community. Three years had passed after world leaders emerged from climate negotiations in France with the Paris Agreement.  After the initial euphoria wore off, reality set in that while climate change was accelerating, mitigation efforts under the Paris Agreement were falling behind schedule.  And the city of Paris itself has become a powerful symbol for the difficulties faced by the Katowice negotiators.  Three short years after being the cradle of a new hope, French measures to implement the Paris Agreement gave rise to the Yellow Vest protests. These protests eventually laid siege to the city of Paris itself.  The picture that emerged: the Arc de Triomphe engulfed in smokeas a signature policy initiative by the French government to implement the Paris Agreement went up in flames. 

So – how successful was COP24? Did it succeed in rescuing the Paris Agreement? Or is Paris in ruins?

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Failing the Hague Stress Test

Published on November 6, 2018        Author: 

On 25 October 2018, the President of the International Court of Justice, Judge Abdulqawi A. Yusuf, made an apparently ordinary announcement in his speech to the United Nations General Assembly. In light of the increasing workload of the Court, Judge Yusuf reported towards the end of his speech, “[m]embers of the Court have come to the decision, last month, that they will not normally accept to participate in international arbitration.” This decision appeared on its face simply to add clarity to the mandate set out in the Statute of the Court that judges may not “engage in any other occupation of a professional nature.” But Judge Yusuf went on with his remarks to specify that “[i]n particular, [members of the Court] will not participate in investor-State arbitration or in commercial arbitration.” Neatly separated from this withdrawal, Judge Yusuf confirmed that the Court will “if the circumstances so warrant, authorize its Members to participate in inter-State arbitration cases.”

Here was the signal international legal observers had been waiting for. The reaction on social media belied the apparently ordinary nature of the statement. The Court had taken a stance on one of the partisan issues of international legal politics – the hot potato of investor-State arbitration.

The events surrounding Judge Sir Christopher Greenwood’s re-election bid to the Court brought that hot potato to the Court’s doorstep. Days after Judge Greenwood conceded defeat in his re-election bid to the Court, a think tank associated with opposition to investor-state arbitration, published a study that called out “moonlighting” by ICJ judges in investor-state arbitrations. One of the judges the think tank focused upon was Judge Greenwood. Its reporting more than implied that Judge Greenwood’s work as arbitrator was a further reason speaking against his re-election. One can only imagine that with the political opposition to investor-State arbitration in Europe and elsewhere, this implication landed with rather a loud thud at the Court. The context thus may have been one of judicial acquiescence to the political headwinds rather than one that was purely a question of workload. After all, while resigning politicians do certainly like to spend more time with their families, this desire is hardly if ever the whole story behind their departure. So, too, the Court’s reasoning appears a little too casual when viewed in context. In fact, this topic was one of the most hotly debated issues at the recent Oxford Investment Claims Summer Academy convened by the Oxford University Press at Kellogg College this July. Read the rest of this entry…

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