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China leans in on international adjudication: Why Beijing’s answer to defeat will be more forceful engagement

Published on May 2, 2018        Author: 
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This year China might suffer the third in a string of stinging defeats at international tribunals that would then cover trade, investment, and law of the sea matters. Contrary to persistent expectations in some policy circles, China’s leaders will not opt for withdrawal. They have resolved to make existing mechanisms work for China, and shape global governance by doubling down on engagement. In line with different degrees of Chinese integration into these systems, Beijing will respond by ratcheting up litigation (trade), upgrading bilateral treaties (investment), and pushing for favourable state practice through diplomacy (law of the sea). The international community will have to deal with a newly powerful legal actor who is very much on the offense.

Failure and Frustration

In two ways, trade law could this year deliver the third bombshell setback in China’s recent engagement with international adjudication. Firstly, there is China’s soon to be decided WTO complaint against the EU’s retention of a distinct (although modified) antidumping methodology for (states like) China. A similar case against the United States is in the consultation stage. Beijing had expected that its Accession Protocol would deliver automatic ‘market economy status’ including more favourable antidumping treatment 15 years after it joined the WTO.

Secondly, a major trade law standoff is unfolding between China and the US, involving the mutual adoption of tariffs and filing of WTO complaints, which could come to a head this year. The US filed a complaint on China’s protection of intellectual property (IP) rights alleging TRIPS Agreement violations. At the same time, the US Trade Representative (USTR) proposed tariffs following a Section 301 US Trade Act of 1974 investigation into Chinese IP practices. Beijing already responded with a WTO complaintalleging that such tariffs would violate the GATT, and its own list of proposed tariffs. Less crucially, China initiated another case alleging GATT and Safeguards Agreement violations through US tariffs on steel and aluminium products.

Previously, giant life insurer Ping An became the first Chinese company to lose an investment arbitration, when its $1 billion claim against Belgium over the Fortisbank nationalization was rejected in 2015. A year later, China suffered an almost total defeat against the Philippinesin an Annex VII UNCLOS law of the sea arbitration on South China Sea issues in July 2016.

Such setbacks trigger angry reactions in China against allegedly biased international institutions that might never give China a fair shake. Many commentators decried China’s supposed second-class membership in the WTO, when the EU decided against granting market economy status, while recent US trade actions are termed severe violations and ‘typical of unilateralism and trade protectionism’ by the Chinese government. Chinese officials were stunned when the investor in Ping Anlost over the ‘technicality’ of whether to rely on the older or the more recent bilateral investment treaty (BIT) between China and Belgium. Following the South China Sea case, it was mooted that Beijing could ‘denounce’ the UN Convention on the Law of the Sea (UNCLOS) to be safe from other states’ attempts to ‘exploit’ the system ‘for political reasons’.

Doubling Down

Yet China is not going to withdraw, and Western governments, as guardians of the current system, will be surprised by how forcefully it will instead lean in to shape existing legal regimes. Tools will differ, but trade litigation, investment treaty making and law of the sea diplomacy to influence state practice serve the same purpose: align the rules further with China’s interests.

This effort is part of the more assertive foreign policy outlined by China’s president Xi Jinping, who just consolidated his power at the First Session of the 13th National People’s Congress. In a major shift, Xi has declared that China will no longer just participate in the international system, but provide ‘guidance’ towards a ‘new international order’. A recent treatise in the People’s Daily confirmed the ambition to seize the ‘historic opportunity’ to shape a new order while US policies under President Trump leave a leadership vacuum.

An underestimated driver of such strategic decisions is a policy elite of Chinese international lawyers who overwhelmingly favour playing offense. Prominent academics and legal counsels to the Chinese leadership have argued that with WTO dispute resolution, just showing up is half the battle. They have called for China to develop the litigious ‘mind set’ and investment treaty framework to go with its new status as major global investor. Lastly, they want China to go around the South China Sea award and influence the law of the sea by shaping state practice through diplomacy.

Bespoke Strategies

After China was refused ‘market economy status’, its Ministry of Commerce immediately struck back at the EU with a complaint at the WTO. Should it now lose the case, its appeal will already be prepared, as will be fresh complaints tackling the broader issue from different angles. At the same time, Beijing encourages Chinese companies to more proactively ‘prove’ to regulatory agencies abroad that they operate under market conditions, and contest adverse decisions at local courts.

Similarly, the Chinese government very quickly responded to recent (partly only proposed) US tariffs, with two fresh complaints. The current overall dispute with Washington will see a Chinese leadership that is more open to negotiated solutions than on antidumping methodology. Should there be any adverse decisions, though, China would again immediately appeal and file further complaints.

Flanking its litigation strategy, China continues massive diplomatic lobbying. Firstly, this serves to gain recognition as a market economy. More than 80 countries have already complied by explicitly providing such recognition, and FTA negotiations in line with theBelt and Road Initiative are to increase that number. President Xi has called for hastened implementation of China’s free trade strategy to strengthen its position in writing global trade rules, after failed Western efforts with TPP and TTIP left the field open.

Secondly, Beijing is actively portraying itself as defender of the WTO trade regime against a protectionist Trump administration onslaught. While many governments share US concerns about IP rights in China, Beijing uses (potential) US tariff implementation without WTO decisions, especially where broadly targeted such as on steel and aluminium, to position itself as the better trade citizen. China’s aim is not only to offset pressure concerning domestic legal changes, but also to shape future coalitions of states in international trade law reform (or rather in blocking reform where existing frameworks suit China).

On investment law, the investor’s defeat in Ping An spurred the Chinese government to quickly improve its investment treaties and seek influence on global investment rules harmonization. Beijing wants to get new investor-friendly treaties in place that include improved transitional clauses, and grant broad access to international arbitration, as well as, quite unusually, appellate bodies. Chinese lawyers argue that such mechanisms may improve legal predictability, but perhaps more importantly they would give the Chinese side another chance in case of defeat.

Wanting to make use of the full arsenal of available measures, the Chinese leadership also acts on the multilateral level. On the path towards a common worldwide investment law system that looks more like the WTO in the trade area, Beijing seeks to set the agenda and touts the ‘Guiding Principles for Global Investment Policymaking’, adopted at the 2016 G20 Summit in Hangzhou, as a first step. The non-binding principles are infused with Chinese wording and interpretations of principles such as legal predictability, transparency, and effective dispute resolution.

Finally, in the third issue area of the law of the sea, after the stunning loss on South China Sea claims, Beijing decided to undermine the award’s authority with a diplomatic push to underline contradictory state practice. Chinese officials aim to prevent the arbitrators’ restrictive interpretations of ‘historic rights’ and ‘island’ status from becoming international customary law. They point out, for example, that the United States and Japan use tiny rocks to make extensive maritime claims, and lobby states worldwide to support China’s interpretation of its islands’ entitlements. Some scholars point out the potential for further UNCLOS implementation agreements(as on deep seabed mining), which could clear up ambiguity in terms favourable to China and override the tribunal’s decisions.

While China may strictly reject compliance with the South China Sea award, it needs UNCLOS to protect its interests and gain influence on maritime governance. Beijing aims to secure a large UNCLOS-sanctioned continental shelf in the East China Sea, based on favourable geography vis-à-vis Japan. It wants Chinese companies to be in a prime position for the coming International Seabed Authority-sanctioned mining bonanza under the high seas worldwide, and it intends to have a seat on the table regarding Arctic governance issues. Indicative of its strategic choice to shape the system from within, China now adopts more UNCLOS-like language for its South China Sea claims and backs away from the ‘Nine-dash Line’.

The Future of China and International Law

So, in a nutshell, what should we expect China to do? Its approach has already evolved considerably. The focus shifted from the international legal order’s ‘hardware’ – joining institutions and equipping them with Chinese judges and staff – to its ‘software’. Now the Chinese leadership wants more influence on the treaties and customary law behind the system. In a parallel process, once it feels confident enough in a particular field, China gradually but inevitably boots up participation at court.

Prominent voices in China, including Prof. Yi Xianhe, member of the Foreign Ministry Consultative Committee on International Law, have argued that China must be a ‘leader country’ on international law, if it is to consolidate economic and political gains. That includes actively engaging with international tribunals. Such statements represent an emerging consensus among Chinese international lawyers that forward-leaning engagement will on balance be a positive for China, and the best protection of its national interests.

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ICERD and Palestine’s Inter-State Complaint

Published on April 30, 2018        Author: 
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On 23 April, The Guardian reported that Palestinian diplomats had filed an inter-state complaint against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). According to the Ministry of Foreign Affairs and Expatriates of the State of Palestine:

Palestine is a State whose territory remains under a belligerent colonial occupation. For its part, Israel, the occupying Power, has maintained its colonial occupation over the past fifty years by imposing racist and discriminatory policies against Palestinian citizens.  Confronting this pervasive reality of racism and discrimination is a priority. This cannot wait. It should not. No person or people should be asked to tolerate racism or the violence and injustice it breeds.

The Guardian writes that “the submission is believed to be the first interstate complaint filed under the treaty”. This is true in relation to ICERD, and also the entirety of the UN international human rights treaties; as the OHCHR highlights in its portal on inter-state complaints: “Note: these procedures have never been used.”

The inter-state procedure is not found in every treaty – there is no formal procedure for filing inter-state complaints under CEDAW and its Optional Protocol. The procedure is found in ICCPR, ICESCR, CAT, CMW, CED and Optional Protocols, but it is generally optional and both States have to have recognised the competence of the Committee to receive such communications. Read the rest of this entry…

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The Security Council and Climate Change – Too Hot to Handle?

Published on April 26, 2018        Author: 
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Introduction

The Security Council, the only body of the United Nations that can adopt binding coercive measures, has so far been reluctant to train its sight at climate change. As the consequences of climate change become ever more severe, an important question is therefore whether the Security Council will address the security implications of climate change.

Article 24 of the UN Charter gives the Security Council primary responsibility for the maintenance of international peace and security. The Council’s classic domain has been interstate armed conflict. Starting in the early 90s, the Council began to show a greater willingness to prescribe measures also in internal situations of humanitarian emergency, thereby articulating a new approach to what constitutes a threat to international peace and security (clearly described in Presidential Statement S/23500, 31 January 1992).

The purpose of this post is to examine whether we can expect a similar evolution when it comes to climate change. In doing so, we must distinguish between three different ways in which the Council can address climate change.

First, the Council can address climate change as part of its general response to conflict situations. Ongoing hostilities in Libya, South Sudan, Yemen and Syria were all catalyzed by extraordinary droughts, storms and extreme flooding, which caused economic and political turmoil and instability. Yet, all these conflicts are recurring items on the Security Council’s agenda. Seen this way, the Council has already shown its aptitude to deal with the immediate security implications of climate change as part of its conflict management agenda.

Second, the Council can proscribe targeted measures to prevent climate change as an independent driver of conflict. This is arguably very different than merely tackling the violent effects of climate change without addressing climate directly. Third, the Council can address security implications of climate change occurring outside of conflict. This is an especially acute problem for most of the so-called Small Island Developing States (SIDS), whose very existence are threatened by sea-level rise, hurricanes and dwindling natural resources. Their remote geographical location and small populations suggest that the situation in those states could gradually deteriorate without causing much conflict or international instability.

The focus of the remainder of the post will be on the Council’s ability to address climate change directly, both as an independent driver of or unrelated to conflict. Read the rest of this entry…

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Environmental Rights and the Legal Personality of the Amazon Region

Published on April 24, 2018        Author: 
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There are two recent, noteworthy developments on environmental rights in Latin America. First, an Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), requested by Colombia. Second, a judgment rendered by Colombia’s Supreme Court, interpreting its international obligations.

The IACtHR’s Advisory Opinion

On 15 November 2017, the IACtHR issued Advisory Opinion OC-23/17, responding to Colombia’s request to clarify the meaning of “jurisdiction” in article 1.1 of the American Convention on Human Rights (ACHR). Colombia suggested that a State has “functional jurisdiction” in areas that are environmentally protected by a treaty to which that State is a party (e.g. the Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region, the “Cartagena Convention”). Colombia also asked if State actions that seriously damage the marine environment – constituting the livelihood of island and coastal inhabitants of another State – are compatible with rights to life and human integrity.

The IACtHR did not limit its Opinion to the marine environment or the Cartagena Convention. It confirmed the relation between environmental protection and the realisation of “other human rights” (paras. 35, 47). It held that the right to a healthy environment is established in Article 11 of the San Salvador Protocol and, as such, is included in the economic, social and cultural rights protected by Article 26 ACHR (paras. 56- 57; in the recent Case of Lagos del Campo v. Peru, the IACtHR established a violation of article 26 ACHR for the first time in relation to the right to freedom of association). Apart from references to the environment in indigenous cases, throughthe right to life and the concept of “dignified life” (vida digna)(Case Comunidad Indígena Yakye Axa Vs. Paraguay), the IACtHR never before addressed environmental rights directly. Read the rest of this entry…

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What lies beneath? The turn to values in international criminal legal discourse

Published on April 23, 2018        Author: 
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On the 9th of April, the Office of the Prosecutor (OTP) of the International Criminal Court submitted a request for a ruling by the Pre-Trial Chamber on whether the Court has territorial jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh. This development may impact how the ICC approaches its territorial jurisdiction in future, and raises interesting questions over the legal nature of the crime of deportation. However, the submission also gives rise to questions of a more theoretical nature that relate to the normative basis of international crimes, or more specifically, the acts that constitute them. The Prosecutor’s submission on jurisdiction over deportation into Bangladesh highlights an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes. This coincides with a broader debate on the legal goods protected by these crimes, and invites us to consider the implications of this trend for the communicative function of the law.

Part of the Prosecutor’s submission on jurisdiction in Bangladesh addresses the distinction between the crimes of deportation and forcible transfer. Read the rest of this entry…

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Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 
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Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

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The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

Published on April 18, 2018        Author:  and
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On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice Read the rest of this entry…

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The Syria Strikes: Still Clearly Illegal

Published on April 15, 2018        Author: 
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The strikes conducted this week against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law.

Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Their leaders spoke of the imperative need to avoid normalizing the use of chemical weapons; President Trump stated that the purpose of the strikes ‘is to establish a strong deterrent against the production, spread, and use of chemical weapons;’ Prime Minister May said that there was ‘no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime;’ President Macron spoke of the operation being directed solely against the clandestine chemical arsenal of the Syrian regime.

The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. As the ICJ has explained in Nicaragua, para. 207, it is for states to articulate their own legal views, and it is on the basis of these views that other states can react, perhaps towards the creation of a novel rule or exception to an existing rule. In the absence of such a position, however, the approval of the strikes or lack of condemnation by third states has no bearing on the formation of customary international law, or on the evolving interpretation of the Charter. This is the barest minimum of formality required in a legal system, even a flexible one. This is not, as Monica argues in her post, a ‘simplistic’ position lacking in nuance – even if it is conceptually simple, and should be conceptually simple. This is the only dividing line we can have between law and politics, between legal and political arguments.

Read the rest of this entry…

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Filed under: EJIL Analysis, Syria, Use of Force
 

Copenhagen – much ado about little?

Published on April 14, 2018        Author:  and
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The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. Previous installments were agreed at Interlaken, Izmir, Brighton and Brussels.

On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity.

The agreed declaration is strikingly different:  Instead of being skeptical to the Court’s achievements and its course, the final Declaration is explicitly supportive of the Court and its independence from the states. The large backlog of cases gives reasons for “serious concern”, though the principal problem is not the Court, but rather some states’ failure to implement the Court’s judgments.  Read the rest of this entry…

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OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

Published on April 13, 2018        Author: 
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The OPCW Technical Secretariat released yesterday the findings of its investigation into the Salisbury affair. The report confirms the UK account of the nerve agent, without however specifically naming it in the unclassified executive summary; it also states that the agent was of a high purity, implying its manufacture by a state, but without naming Russia as the source (much in the same way as the UK’s own chemical weapons lab). Here are the key bits:

8. The results of analysis of biomedical samples conducted by OPCW designated laboratories demonstrate the exposure of the three hospitalised individuals to this toxic chemical.
9. The results of analysis of the environmental samples conducted by OPCW designated laboratories demonstrate the presence of this toxic chemical in the samples.
10. The results of analysis by the OPCW designated laboratories of environmental and biomedical samples collected by the OPCW team confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured three people.
11. The TAV team notes that the toxic chemical was of high purity. The latter is concluded from the almost complete absence of impurities.
12. The name and structure of the identified toxic chemical are contained in the full classified report of the Secretariat, available to States Parties.

UPDATE: See also this letter from the UK National Security Advisor to the NATO Secretary-General, providing some previously classified intelligence about the Skripal poisoning.

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