magnify
Home Archive for category "EJIL Analysis"

Remaking the World towards ‘Fair and Reciprocal Trade’? The Case for (More) Interdisciplinarity in International Economic Law

Published on November 17, 2017        Author: 

Geopolitical changes were on full display last week at multiple economic summits in Asia, where red carpet pageantry converged with the dramatic publicity of States brokering new deals at the regional meetings for the Asia-Pacific Economic Cooperation (APEC) in Viet Nam, the Association of Southeast Asian Nations (ASEAN) Heads of State Summit and the 12th East Asia Summit (EAS) in the Philippines, the side meetings of the China-led 16-country bloc drafting the Regional Comprehensive Economic Partnership (RCEP), the Japan-led Trans-Pacific Partnership-11 (recently renamed into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership), with considerable focus on United States President Donald Trump’s 12 day tour in Asia for these meetings as well as for bilateral trade talks with Japan, South Korea, and the Philippines.  In Viet Nam, US President Trump suddenly renamed the Asia-Pacific into the “Indo-Pacific”, a deliberate policy strategy to define Asia beyond China’s growing hegemony into a sphere of alliances built with India, Japan, and other Southeast Asian countries.  

The Asia economic summits conveyed the implicit assumption that international trade and investment treaties had to be revised or rewritten towards “fair trade”, even if there were differing understandings of what that fairness meant.  US President Trump’s address at APEC demanded “fair and reciprocal trade” as part of his ‘America First’ policy, blaming trade agreements for serious US trade deficits with China and other countries. Canadian Prime Minister Justin Trudeau delayed agreeing to renew the TPP partnership under the aegis of the CPTPP, pushing for Canadian interests in ensuring strict environmental and labour standards in the agreement, and succeeding in suspending the problematic provisions in the intellectual property chapter which the US had originated in the TPP draft.  Newly-minted New Zealand Prime Minister Jacinta Ardern claimed victory with the suspension of investor-State dispute settlement clauses from the CPTPP, in favour of compulsory domestic court adjudication for any investment disputes.  In contrast, China took up the cudgels for globalisation and the established institutions and processes of the multilateral system, with Chinese President Xi Jinping firmly declaring at APEC that “economic globalisation is an irreversible historical trend…in pursuing economic globalisation, we should make it more open and inclusive, more balanced, more equitable and beneficial to all.”

The recent pronouncements by world leaders should be of considerable interest to international lawyers, given the heightened political and economic expectations placed on international economic agreements (trade and investment treaties), and what social outcomes they should (or should not) produce beyond the traditionally narrow objectives of liberalising foreign market access.  The international economic system is moving towards a multi-speed configuration of States oscillating between competing economic ideologies (e.g. resurgent new forms of “mercantilist protectionism”, revised ‘mainstream’ neoclassical economics, ‘new’ behavioural economics, among others); changing philosophies of government (e.g. the revival of authoritarianism and ‘illiberal’ democracies, leaning away from liberal democracies); evolving theories on the regulation of property, competition, and information given rapidly-developing technologies (e.g. artificial intelligence and the explosion of automation in supply chains, the domestic and transnational social impacts of the digital ‘sharing’ economy, climate change-driven restructuring to consumption patterns and production processes); and expanding understandings of domestic and transnational challenges to global public goods (e.g. environment, health, peace and security, among others).  Accordingly, there is an even greater burden for international lawyers (especially those that assist or advise States drawing up their respective visions for a new global economic architecture), to clarify and be transparent about how the political, economic, and social ends sought will be effectively met through the current and future mechanisms of international economic law and its institutions for governance and coordination.  Beyond the fog of press publicity, are we candidly and accurately communicating to the politicians the actual limits of international economic treaties, along with their potentials?  

In this post, I argue that international lawyers – especially international economic lawyers tasked with drafting, revising, critiquing, and building the new bilateral, regional, and global constellation of economic treaties – increasingly have to deepen interdisciplinarity, and not just in the sense persuasively observed by Tom Ginsburg and Gregory Shaffer as the “empirical turn in international legal scholarship” (106 American Journal of International Law (2012), pp. 1-46. Perhaps more fundamentally, international lawyers need even more interdisciplinarity, because we are at present hard-pressed to approximate, if not achieve, an idea of “fairness” in the international economic system’s treaties and institutions (no matter how contested that sense of “fairness” is, to begin with).  If we accept that the “fairness of international law” is legitimately our concern as international lawyers and scholars (as Thomas Franck famously argued), we should be more open to readily engaging the interdisciplinary assumptions marshalled in the reform and remaking of international economic treaties and institutions today.  

While we may not of course be the experts in these other disciplines, and we should, indeed, preserve the “relative autonomy” of international law (as Jan Klabbers cautions), some sharpening of our interdisciplinary sensibilities can nevertheless be useful in helping us to test the “good faith” nature of any postulation or assertion on the desired weight, form, content, and structure of our international economic treaties and institutions.  I use three examples of unstated assumptions in the debate over international economic treaties today that illustrate where interdisciplinarity is sorely lacking: 1) that international economic treaties can somehow erase trade deficits and permanently prevent trade imbalances; 2) that international economic treaties can anticipate and provide the most appropriate and suitable dispute resolution mechanism for the particular States parties to these treaties – for the entire life of these treaties – which is problematic with the growing depiction of a supposed ‘binary’ choice between investor-State dispute settlement mechanisms (ISDS) and local court adjudication (and/or political risk insurance); and 3) that international economic treaties can be designed to fully create desired social, environmental, labor, health, education, and all public interest outcomes.  I posit that while interdisciplinarity may show us that international economic treaties could be a correlative, if not possibly one of the causal, factors for desired outcomes, and that we can probably design them with sensitivity and vigilance towards controlling the negative externalities they cause and encouraging positive distributive consequences, the international economic treaty-writing (and rewriting) exercise is complex. We cannot – as politicians do – simplistically oversell or lionise these treaties as somehow the definitive “one size-fits all” solution to remake the world towards “fair and reciprocal trade”.

Read the rest of this entry…

Print Friendly
 

The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

Published on November 15, 2017        Author: 

On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. Read the rest of this entry…

Print Friendly
 

A Danish Crusade for the Reform of the European Court of Human Rights

Published on November 14, 2017        Author: 

Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. Read the rest of this entry…

Print Friendly
 

War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

Published on November 9, 2017        Author: 

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why. Read the rest of this entry…

Print Friendly
 

New Issue of EJIL (Vol. 28 (2017) No. 3) – Out Next Week

Published on November 6, 2017        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

Those Who Live in Glass Houses …; In this Issue

Articles

Andrew D. Mitchell and James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

Gracia Marín Durán, Untangling the International Responsibility of the European Union and its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model

Sergio Puig and Anton Strezhnev, The David Effect and ISDS

Focus: Human Rights and the ECHR

Merris Amos, The Value of the European Court of Human Rights to the United Kingdom

Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights

Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights

Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee

Thomas Kleinlein, Consensus and Contestability: The European Court of Human Rights and the Combined Potential of European Consensus and Procedural Rationality Control

Roaming Charges

Emma Nyhan, A Window Apart

EJIL: Debate!

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights

John Gerard Ruggie and John F. Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale Read the rest of this entry…

Print Friendly
 

The European Arrest Warrant against Puigdemont: A feeling of déjà vu?

Published on November 3, 2017        Author: 

On 2 November 2017, the Spanish State Prosecutor asked Carmen Lamela, a Spanish judge, to issue a European Arrest Warrant against Carles Puigdemont and four of his former ministers following the vote of secessionist Catalan MPs to declare independence. They face potential charges of sedition, rebellion and misuse of public funds. Carles Puigdemont, who arrived in Brussels a few days before the news of the warrant was made public, called in a Belgian lawyer to defend his case. The Spanish authorities may not be thrilled by his choice.

The Basque precedent

In 1993, Spain issued an extradition warrant against two Basque secessionists who fled to Belgium, Moreno Ramajo and Garcia Arrantz. They were accused of participating in an unlawful association and an illegal armed band. The Court of Appeal of Brussels issued an Advisory Opinion according to which, the warrant was founded on political crimes and therefore, the extradition request should not receive a favourable response. The Belgian Ministry of Justice nevertheless ruled in favour of the extradition. In the meantime, Moreno Ramajo and Garcia Arrantz lodged an asylum application in Belgium, which was received admissible for further consideration. The extradition procedure was put on hold until a final decision to reject their asylum applications was made in 1994 on the grounds that despite the fact that cases of abusive behaviours of Spanish authorities towards Basque secessionists existed, these were isolated cases. Therefore, the argument was that there was no reason to believe that the Spanish justice system would fail to provide them with a fair trial. Thus, the extradition request was pursued and accepted. Following this decision, the couple submitted a procedure of extreme urgency before the Belgian Council of State in order to stop their extradition. This was successful and their extradition did not proceed(E. Bribosia and A. Weyembergh, ‘Asile et extradition: vers un espace judiciaire européen?’ (1997)  at 73-77).

What happened after that? Read the rest of this entry…

Print Friendly
 

Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Published on November 3, 2017        Author: 

On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had. Read the rest of this entry…

Print Friendly
 

Guantanamo Surrealism

Published on November 2, 2017        Author: 

The surrealism of the moment defies description. Who would have thought, even only a short while ago, that on a nice November morning a US military commission judge in Guantanamo would be holding a Marine general and chief defense counsel for the commissions in contempt, sentencing him to 21 days of confinement in, well, Guantanamo? Who would have thought that on that same day the President of the United States would be deriding the US criminal justice system as a “joke” and a “laughingstock,” while suggesting that the “animal” who perpetrated a deadly vehicular terrorist attack in New York City be sent to that same Guantanamo, with its oh-so-successful, cost-effective military commissions? That he and his White House would, in 2017, be calling this individual an “enemy combatant”?  That he would be joined in doing so by prominent US senators, lamenting the fact that the individual concerned has not yet been shipped off to Gitmo, despite the fact that he essentially committed his crime in full public view and on camera, so that the likelihood of his acquittal before any regular civilian court would effectively be nil? 

Surrealism is by definition unexpected. Slippery slopes  are not. They can often be seen from a very, very long way off. And many of us have spent years warning some of our US colleagues of the dangers of some of the theories they have been advancing in the pursuit of the global conflict against terror. Just a few weeks ago we had just such an “IHL party” on the blog, provoked by a post of Ryan Goodman on Just Security. I pointed out in that discussion that while there was a measure of agreement on the geographic scope of application of IHL, that issue was part of a broader package, and that some items in that package – above all the definition of the relevant armed conflict and the classification of individuals with a nexus to that conflict – continued to attract controversy, inter alia because of the manifest possibility of abuse of some of the lines of argument put forward and their lack of basis in conventional and customary IHL.

So I therefore have a question for our American colleagues, including my friends on Just Security and Lawfare – let us assume that the facts about the New York terrorist continue to be as we know them today, i.e. that he essentially self-radicalized by looking at ISIS materials on the Internet and that he, beyond professing allegiance to ISIS, was at no point subject to the chain of command of that armed group fighting in Iraq and Syria. On these facts, are we in agreement that there is no way that this individual could be qualified, under the relevant rules of international law, as a fighter in any IHL-cognizable armed conflict? I am not asking what consequences this would have under US domestic law, including the AUMF; I am only interested in IHL. Under IHL, it seems to me that there is not even a remotely plausible, let alone genuinely persuasive, argument that this individual has a nexus to any armed conflict/was a member of a non-state armed group engaging in hostilities in such a conflict. He is not an “enemy combatant” in any international legal sense of the word; he is only a (vicious) criminal. This is not a hard or difficult case – it’s an easy, obvious one, again assuming the facts as we know them today. Do we agree? 

Print Friendly
 

The Continuing Utility of International Human Rights Mechanisms?

Published on November 1, 2017        Author: 

Can a convincing case still be made that the pursuit of international human rights mechanisms leads to efficacious results? The challenges to, and criticisms of, human rights systems in recent years are legion. Their legitimacy has been questioned (leading in some instances to the threat of state withdrawal, such as the case of Russia within the Council of Europe, complaining that it no longer has a role in electing judges to the European Court of Human Rights). It is also said that human rights mechanisms are inefficient and overloaded and that decisions are not implemented. Litigation can of course set bad precedents, resulting in regression, and even progressive decisions can lead to backlash – as a response, legislation may be introduced which is aimed at narrowing or reversing the positive effects. It remains very difficult to measure the impact of strategic litigation: governments seek to deny any impact; there may be a range of legal, social and political dynamics at play; and a lack of baseline data or analysis.

Their effectiveness relies on a minimum level of good faith shown by the executive and sufficient political will to lead to positive change. How viable is that when increasingly we are faced with the perilous position of the executive taking control of the judiciary, as is already the case in countries like Azerbaijan, and as we are seeing in Venezuela and Poland? It is also suggested that there is an over-legalisation of the human rights movement, which is not capable of addressing complex social problems, as a result of its distance from grass roots and the inadequate contextualisation of human rights issues at the national or local levels.

And yet….recent research suggests on the contrary that these legal mechanisms are indeed productive and viable, although we may need to do more to understand their various impacts and to develop different approaches to ensure we are getting the best out of them.

In her new book, Evidence for Hope, Kathryn Sikkink marshals a compelling argument that human rights laws and institutions have had positive impacts, especially in states undergoing political transition to greater democracy. She discerns both evidence of the socialisation of states taking place within these institutions, and also change from the bottom up: as a consequence of domestic social movements in repressive societies using legal tools. Sikkink suggests that the multiple accountability mechanisms (international and regional) address different kinds of impunity and serve to reinforce one another, and that strong domestic courts act to enhance the effects of states’ international commitments. Read the rest of this entry…

Print Friendly
 

Access to Remedy Under the UNGPs: Vedanta and the Expansion of Parent Company Liability

Published on October 31, 2017        Author: 

On Friday, 13 October 2017 the UK Court of Appeal handed down its long anticipated decision in Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (“Vedanta”). The appeal was brought by UK-based Vedanta Resources Plc (“Vedanta Resources”) and its Zambian subsidiary Konkola Copper Mines (“KCM”), against a decision dismissing certain jurisdictional challenges brought by each of Vedanta Resources and KCM.

The underlying claim was brought by a group of Zambian Villagers alleging that harmful effluent from the appellants’ Zambian copper mining operations had been discharged into the local environment, including waterways that were of critical importance to the livelihood of the claimants, and to their physical, economic and social wellbeing. Rejecting the appeal, the Court of Appeal found that the claim could proceed against the appellants in the UK.

The Vedanta litigation is a critical avenue for the claimants to pursue effective remedy as envisioned by the UN Guiding Principles on Business and Human Rights (“UNGPs”) and represents a significant development in the emerging doctrine of parent liability. Read the rest of this entry…

Print Friendly