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UNCITRAL and ISDS Reforms: Hastening slowly

Published on April 29, 2019        Author:  and
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Editor’s Note:  This week, we will be featuring several posts critically examining the UNCITRAL ISDS reform process, which held its latest Working Group III meetings in New York on April 2019.  We begin with today’s introduction from Anthea Roberts and Malcolm Langford.  Malcolm Langford attends UNCITRAL Working Group III as Chair of the ISDS Academic Forum and a representative of Pluricourts, University of Oslo. He writes here in his independent academic capacity.Anthea Roberts attends UNCITRAL Working Group III as part of the Australian delegation but she acts and writes in her independent academic capacity. 

UNCITRAL’s Working Group III on investor-state dispute settlement (ISDS) reform continues to attract substantial and growing interest. In the first week of April 2019, a record number of states and observers descended on New York to clarify the final list of concerns and establish a work plan for moving forward on concrete reforms. This session continued the earlier trend of hastening slowly. A recognition of the need for reform amongst states is clear but the tempo remains modest given the reticence of some and the panoply of reform options being considered. This blog post sums up the four main takeaways of the week and will be followed by three reflective analytical posts on the West/Rest politics underlying the process, the role of academics in international politics, debates around naming and framing (“we are all systemic reformers now”) together with a concluding post. Read the rest of this entry…

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Afghanistan and the ‘interests of justice’; an unwise exercise?

Published on April 26, 2019        Author: 
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It has been more than a week now that a reference to the ‘interests of justice’ has highjacked the international criminal law blogosphere. The recent decision by the International Criminal Court’s Pre-Trial Chamber (PTC) to reject the Office of the Prosecutor (OTP)’s request for authorization to open an investigation in the Afghanistan situation, solely on the basis of interests of justice, not only has triggered ‘outcry’, but it has also united various scholars and experts from very different backgrounds. Characteristically enough, this decision has been described as problematic for the legitimacy of the Court, especially in a period in which the Court needs a credibility boosting (see Vasiliev), as legally wrong, either due to the PTC’s review without prior invocation of interests of justice by the Prosecutor (see Jacobs ) or due to its de novo review (see Heller ), and as dangerous for the entire feasibility of the project, given the message it conveys in cases of no cooperation. In simple words, there is a striking consensus that this is a very bad decision (see De Vos and Kersten).

Several legal aspects of the decision have been already addressed by a series of commentators (see Jacobs and Akande and Labuda) and in the interests of  justice for the readers, I will refrain from repeating them. I have also suggested in the past the revision of the very narrow OTP policy paper (see JICJ) and recommended the consideration of the interests of justice via the angle of a fairness based theory of prosecutorial legitimacy (see EJIL). However, for the purposes of this very short intervention I would like solely to question the judicial wisdom, or mainly the lack thereof, to utilize this controversial tool in this particular moment of time.  In other words, was the invocation by the judges of this concept for the very first time a wise exercise of their judgment or not?  

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Life Without the WTO – Part II: Looking to the Everyday

Published on April 26, 2019        Author: 
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Editors’ Note: This is the second post of a two part series by EJIL:Talk Contributing Editor Michael Fakhri. Part I can be found here.

In this second post I want to provide two examples of how life might look like without the WTO. One could do this in a myriad of ways and my purpose is to encourage more thinking along these terms and not to define that debate (well, not yet at least). Let’s see what the world looks like when we highlight the everyday practices of procuring food and doing business:

If a central tenet of the WTO is trade liberalization, the Agreement of Agriculture has always been a failure no matter what your definition of liberalization is. Developing countries had, either through the coercion of IMF structural adjustment programs or unilaterally with the aid of World Bank programs, already implemented a small revolution and liberalized their agricultural sectors before 1994. By the late 1980s, they were export-oriented and did little to protect (i.e. support) domestic agricultural production. So, developing countries did not need the WTO to liberalize their agricultural markets.

Instead, the Agreement of Agriculture, took what was an exception under GATT, and turned it into the norm through things like the Green Box (defined in Annex 2 of the Agriculture Agreement). The most popular way that rich countries made exceptions within GATT for their agricultural policy was under GATT Article XII which allowed for quantitative restrictions to be temporarily employed in order to avoid a fiscal crisis caused by a serious balance of payment deficit. In 1955, this temporary exception became the permanent rule when a very generous waiver was granted to the US (BISD 3S/34-5) and a more conditional ‘Hard Core Waiver’ (BISD 3S/39) for the rest of the world but which primarily favored the then EEC. The result was that the GATT now granted countries permission to impose quantitative restrictions for trade in agriculture. The waivers became the rule and were in effect until 1994. With the WTO’s Agreement of Agriculture, the world’s largest markets continued to be closed off to developing countries. Read the rest of this entry…

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Life Without the WTO – Part I: Stop all this Crisis-Talk

Published on April 25, 2019        Author: 
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Editors’ Note: This is the first part of two posts by EJIL:Talk! Contributing Editor Michael Fakhri.

We hear a lot today about the WTO being in crisis. Some people have focused on institutional changes are imagining life without the DSU if it is not reformed. Others are proposing that the WTO consider life without the US. I think, however, we’re at a moment when it’s worth imagining life without the WTO (or at least radically reimagining the WTO). It is actually not too difficult a task if you look at one place the WTO should not have gotten into in the first place – agriculture – and one place where people conduct cross-border business and the WTO is nowhere in sight – the informal economy. I’ll address those in my second blog post.

But first, all this new talk of a WTO crisis is overblown. The WTO was born into a crisis. In light of the Marrakesh Agreement’s 25th birthday this month, it is worth recounting some living memory surrounding the WTO. In the final years of the Uruguay round, farmers in India argued with each other in the streets and in the newspapers over whether they would benefit from a freer market. Environmentalists around the world re-energized their protest efforts having learned some lessons in trade law from the GATT Tuna-Dolphin cases. And labor unions worried about a regulatory race to the bottom. The food sovereignty movement was galvanized by the advent of the WTO and continues strong to this day. Read the rest of this entry…

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The ICC and US Retaliatory Visa Measures: Can the UN Do More to Support the Privileges & Immunities of the Prosecutor?

Published on April 23, 2019        Author:  and
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On 12 April 2019, the ICC Pre-Trial Chamber II decided to reject the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that an investigation would not be “in the interests of justice,” though it found that the case otherwise satisfied the requirements of jurisdiction and admissibility set forth in the Rome Statute (see recent posts here). The ruling came on the heels of the US revocation on 5 April of ICC Prosecutor Fatou Bensouda’s visa for entry to the US, and prior US threats to take action against the ICC for examining the situations in Afghanistan and Palestine.

While the Pre-Trial Chamber (PTC) made no direct mention of recent US hostility towards the ICC, it appears to have implied, and others have suggested (here, here, and here), that such pressure played a role in the decision. As the PTC noted, “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both Parties and non-Parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future […]” (para. 94).

Senior US officials were quick to claim victory and take credit for the development, ostensibly linking US pressure to the outcome. Alluding to a potential appeal of the PTC decision, as well as the Prosecutor’s preliminary examination into the situation in Palestine, President Trump menaced that US actions against the ICC could continue: “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response.”

This post considers how the United Nations can—and may be obliged to—play a bigger role in helping to protect the Prosecutor and her team from one form of this US hostility towards the Court: visa restrictions. Despite US obligations under the US-UN Headquarters Agreement to allow the transit of individuals conducting business at UN Headquarters, some ambiguity surrounds the question of when and under what conditions the US will allow the Prosecutor access to Headquarters now that her visa has been revoked. Read the rest of this entry…

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part V: Conclusion

Published on April 18, 2019        Author: 
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The murder of Jamal Khashoggi is in many respects a truly extraordinary case. But it is by no means unique – authoritarian states assassinate journalists and political dissidents with some frequency. The use of consular premises as the scene of the killing is, of course, one special feature of this affair. And while diplomatic and consular privileges and immunities are abused all the time, this is not normally done in so spectacular a fashion.

What makes Khashoggi’s killing so fascinating from the standpoint of an international legal analysis is the interplay between the human right to life and the rules of diplomatic and consular law. However, as I have explained, most of the possible norm conflicts between immunities and the right to life could have been avoided in Khashoggi’s case. This is primarily because Khashoggi was killed on the premises of a consulate and not those of a diplomatic mission, and because consular privileges and immunities are significantly weaker than diplomatic ones.

It is therefore unclear why Turkey acted as if international law laid such obstacles in front of it, when in doing so it actually exposed itself to legal liability under IHRL for failing to effectively investigate Khashoggi’s death. There are several possible explanations. First, Turkey could have genuinely misunderstood the legal position, failing to appreciate the attenuated nature of consular immunities. The confusion of consular privileges and immunities with the more expansive diplomatic versions has certainly been pervasive in the coverage of the Khashoggi affair. In fact, in a speech in parliament President Erdogan lamented the fact that the ‘Vienna Convention’ – he did not specify which – inhibited the investigation through the ‘diplomatic immunity’ it provided for, commenting that it may need to be reviewed or revised.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part IV: After the Attack

Published on April 17, 2019        Author: 
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Prior posts in this series examined the legal situation before and during the attack on Khashoggi; this one examines its aftermath. After Khashoggi’s death, the substantive negative and positive obligations were extinguished, but the positive procedural obligation to investigate his death was triggered for both Saudi Arabia and Turkey. Khashoggi was subject to the jurisdiction of both states at the moment of his death. Like the substantive positive obligation to protect life, the procedural obligation to investigate is also one of due diligence, i.e. it does not require the state to do the impossible, but only what could reasonably be expected of it in the circumstances. In other words, it is inherently flexible. Investigations into allegations of violation of the right to life must always be independent, impartial, prompt, thorough, effective, credible and transparent, and in the event that a violation is found, full reparation must be provided.

It is manifest that Saudi Arabia is in violation of its procedural obligation to investigate Khashoggi’s death, on multiple grounds. Its agents covered up the evidence of the murder and actively obstructed Turkish efforts to investigate it. Its own internal investigation has lacked any transparency. It is obvious that Saudi law enforcement authorities have no real independence from the executive, the conduct of which they are supposed to be investigating, particularly with regard to the question of whether the crown prince ordered Khashoggi’s killing or knew that the operation would take place. It is equally obvious that the outcome of the Saudi trial of 11 unnamed individuals charged with Khashoggi’s death, which is shrouded in secrecy, is going to be determined by whatever the Saudi royals want the judges to say rather than by any kind of genuine pursuit for the truth.

In short, there is simply no doubt that Saudi Arabia is in violation of the procedural limb of the right to life. The position of Turkey is, of course, very different. As a general matter Turkish authorities have demonstrated willingness to effectively investigate Khashoggi’s death, and indeed much of what we know of his killing is directly the product of their investigative efforts. Had Turkey wanted to be complicit in the Saudi cover-up of the murder, it easily could have been, but it chose differently.

That said, the work of the Turkish investigators has also been subject to considerations of high politics. In particular, it has been limited and will be limited by whatever goals President Erdogan – no huge champion of the freedom of the press or human rights more generally – wishes to achieve in his management of the Khashoggi affair. And there are a number of specific decisions made by Turkish authorities that are at the very least arguably inconsistent with Turkey’s obligation under the ECHR and the ICCPR to effectively investigate Khashoggi’s death: (1) allowing the members of the Saudi hit-team to leave Turkey; (2) allowing the Saudi consul-general to leave Turkey; (3) delaying the search of the premises of the consulate; (4) delaying the search of the residence of the consul-general; (5) possible issues with searches of the consulate’s vehicles.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part III: During the Attack

Published on April 17, 2019        Author: 
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The previous post in the series looked at the situation that preceded the attack on Khashoggi by Saudi agents; in this one we move to the time of the attack itself. Saudi Arabia’s violation of its obligation not to deprive individuals arbitrarily of their life under Article 5 of the Arab Charter and customary IHRL is manifest, in the sense that Saudi Arabia could not offer any kind of justification for Khashoggi’s killing that could be regarded as even potentially legitimate from the standpoint of the right to life. What is not obvious, however, is whether the Charter and the relevant customary rule even applied to Khashoggi, i.e. that they protected him while he was located outside Saudi territory.

Extraterritoriality

This is again a question of extraterritorial application, but this time of the negative obligation to refrain from using lethal force without justification. And this is a question that is in no way unique to the Khashoggi killing. We have confronted it repeatedly in the past couple of decades, whether in the context of the use of lethal force in armed conflict or in plain or not-so-plain state-sponsored assassinations. From drone strikes in the war on terror, to the killing of Osama bin Laden in Pakistan by US special forces, to the assassination of Alexander Litvinenko and the attempted assassination of Sergei and Yulia Skripal by Russian secret agents, to the killing of Kim Jong-nam in Malaysia on the orders of his half-brother, the North Korean dictator Kim Jong-un – all of these cases raise the fundamental threshold question of whether the target of the use of force is protected by human rights law at all. As a general matter, powerful states have been reluctant to accept that human rights treaties would apply to kinetic uses of force outside their territory, especially in areas not within their control, because they tend to see IHRL as an excessive constraint on their freedom of action.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part II: Before the Attack

Published on April 16, 2019        Author: 
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This post will examine the legal situation before the attack on Khashoggi had materialized. The main obligation of Saudi Arabia in that regard is the same as the one during the attack itself, the negative obligation to refrain from arbitrary deprivations of life, and I will therefore address it in the next post in the series. Here, however, I will look at the positive obligation to protect Khashoggi’s right to life on the part of the United States and Turkey.

The duty to protect life

Three basic questions need to be answered with regard to the positive obligation to protect an individual. First, at what point does it arise, i.e. what is its scope of application. Second, once that threshold is crossed, what is the standard of conduct expected of the protecting state. Third, whether on the facts the state acted accordingly, with due diligence, taking all reasonable steps it could have been expected to take. Human rights bodies have extensively dealt with these questions in their case law, e.g. in the Osman jurisprudence of the ECtHR and recently by the Human Rights Committee in its General Comment 36. The threshold and the standard of conduct issues both require that a balance be struck between, on the one hand, the need for states to act affirmatively to protect the life of individuals from third parties, and, on the other hand, the need to avoid imposing unrealistic and excessive burdens on states.

Threshold inquiry: foreseeability of the threat

On the facts of Khashoggi’s killing, therefore, the first question is whether either the United States or Turkey knew, or ought to have known, of a real and immediate risk to Khashoggi’s life at the hands of the government of Saudi Arabia. Was, in other words, the threat to Khashoggi’s life reasonably foreseeable to either state? The threshold standard does not require actual knowledge or certainty of such a threat; it is an assessment of risk. This assessment will necessarily be contextual, and will always depend on (1) the information the state actually had in its possession at the relevant time and (2) information that it did not possess but could have obtained as a reasonable follow-up from the information it did actually already have.

The issue, therefore, is what the United States and Turkey knew about the Saudi threat against Khashoggi’s life, and when they obtained such information. Obviously, any appraisal of what these governments actually knew can at this moment only be tentative and incomplete, in the absence of some kind of investigatory process, whether internal or external, in that regard. That said, as far as we are able to understand this today, what did the two governments actually know?

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part I: Introduction

Published on April 16, 2019        Author: 
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On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate in Istanbul. He was visiting the consulate to obtain a certificate of divorce from his former wife, so that he could proceed to marry his Turkish fiancée, Hatice Cengiz, who was waiting for him in a car outside the consulate. According to media reports relying on the findings of the governments of Turkey and the United States, Khashoggi was killed by Saudi agents and his body was then dismembered with a bone saw; his remains are yet to be found.

It has now been six months since Khashoggi’s killing. Saudi Arabia is conducting a secret trial of 11 individuals accused of his murder; the trial is widely regarded as an attempt to whitewash the involvement in the killing of the highest levels of the Saudi government. The UN Special Rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, has launched an investigation into Kashoggi’s death as part of her mandate; as of the time of writing, she has published a set of preliminary observations and plans to submit a final report to the UN Human Rights Council in June. Her report, based inter alia on a field visit to Turkey, concluded (paras. 10 and 7) that the evidence ‘demonstrates a prime facie case that Mr. Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia and others acting under the direction of these State agents,’ a ‘grave violation’ of the human right to life.

Some legal issues that arise in that regard are trivial, even if they are politically extremely controversial. For example, it is legally irrelevant whether, in fact, the Saudi crown prince Mohammed bin Salman ordered Khashoggi’s death or not. Per the customary rule codified in Article 7 of the ILC Articles on State Responsibility, Saudi Arabia incurs state responsibility for an internationally wrongful act committed by its organs acting in their official capacity, such as intelligence and state security officials, even if that act was committed ultra vires. Whether the crown prince’s underlings exceeded his orders or failed to inform him of the supposedly unauthorized operation – which involved a team of 15 agents, including a forensics expert specializing in rapid dissections, and two private jets – simply does not affect the attribution of, and hence responsibility for, the operation to Saudi Arabia.

It is similarly unquestionable, as Steve Ratner explained on Lawfare, that the Saudi operation against Khashoggi was a violation of Turkey’s sovereignty and of its rights under diplomatic and consular law. But while condemning Saudi Arabia for these violations would be both right and without difficulty, for international law to care only about the violations of the rights of the state in which he was killed would also profoundly fail to legally capture our sense of moral outrage over Khashoggi’s death. In addition to any criminal responsibility that may exist under either Turkish or Saudi domestic law, the most serious violation of international law at stake here is that of Khashoggi’s human right to life, and an attempt – ultimately unsuccessful due to the operation’s public exposure – to forcibly disappear him. This violation is compounded by that of the freedom of expression, since the reason for Khashoggi’s killing was his speech critical of the Saudi regime, and that of the prohibition of cruel, inhuman and degrading treatment regarding Khashoggi’s next of kin, due to the manner of his killing and the desecration and disappearance of his corpse.

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