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Symposium on the Genocide Convention: Codification of the Crime of Genocide – a Blessing or a Curse?

Published on May 15, 2019        Author: 
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Editor’s note: This is the first post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. 

Codification of the crime of genocide

A lot has been written about the origins of the crime of genocide that need not be repeated here. It is well known that Lemkin originally saw genocide as a broad concept, i.e. as different acts aimed at destroying the culture and livelihood of groups (Axis Rule in Occupied Power, pp. 79-82). Along the same lines, the 1946 UN General Assembly Resolution 96 described genocide as the denial of the right of existence of entire human groups – including political ones. However, the scope of the definition adopted in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was significantly narrower. Cultural destruction and forcible population transfer were not included in the final text, protected groups were restricted, and jurisdictional reach limited. Yet, the Convention must be understood in the context of time. Indeed, having in mind the historical background, it is quite remarkable that the Convention was adopted at all – and broad support was generated by making concessions and imposing more stringent requirements.

Since the Genocide Convention defined and codified the crime of genocide as an independent crime, the definition of genocide has remained firmly settled in international law. Perhaps prematurely, the ICJ had already proclaimed its customary status in 1951, which was subsequently fortified by the verbatim reproduction of Article II of the Genocide Convention in the statutes of international ad hoc tribunals (here and here) as well as the Rome Statute of the ICC. This surely contributed to legal certainty and, from this perspective, codification can be viewed as a blessing for the relatively consistent application of the definition of genocide at the international level. Yet, simultaneously, it was a curse, preventing the crime from undergoing a development similar to that of crimes against humanity and even war crimes. This downside of the early codification could have been at least partially addressed through teleological and evolutive interpretation of the offence. The international tribunals, however, failed to realize the potential of the definition and thus contributed to frustrations surrounding prosecutions of genocide as well as to claims that genocide today is a redundant crime. Read the rest of this entry…

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Introducing Upcoming Blog Symposium on the Genocide Convention

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Editor’s note: Starting this afternoon, the blog will host a symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention.

On 9 December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide in response to the Holocaust. It was designed to prevent and punish ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group’. At present, 150 states have ratified this treaty in the hope that current and future generations would not have to experience such heinous atrocities as committed during the Second World War.

Over the past seventy years, the legal concept of genocide has had time to evolve and mature. States and the international community have been given the impetus to prevent, prosecute and punish genocide to deliver on their historic promise that it would happen ‘never again’. The recent 70th anniversary of the Genocide Convention inspires reflection on its development and critical assessment of its legacy.

The Nottingham International Law and Security Centre, co-directed by Professors Mary Footer and Nigel White, organised and sponsored an interdisciplinary conference to mark the ‘70th Anniversary of the Genocide Convention’ in November 2018. In three panels, the participants focused on the conceptualisation of genocide, jurisdictional matters and universality, and responsibility. Three of the best papers, one for each panel, were then selected for this small blog symposium on EJIL: Talk!. Read the rest of this entry…

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To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Published on May 14, 2019        Author:  and
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As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’. Read the rest of this entry…

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Passportisation: Risks for international law and stability – Part II

Published on May 10, 2019        Author: 
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Editor note: This is Part II of a two-part post. See Part I here.

Part One of the blogpost examined the recent Russian decrees on a fast track procedure for conferring Russian nationality on inhabitants of Eastern Ukraine and explained international legal principles which govern such extraterritorial naturalisations. 

III. Striking the Balance: International Legal Limits on Passportisation

The conflicting individual and governmental interests and the overarching global value of a stable repartition of jurisdictions are reconciled by posing specific legal limits on the power of a state to naturalise citizens of another state.

The Prohibition of an Arbitrary Refusal to Release One’s Nationals

The prohibition of arbitrary decisions concerning nationality issues has emerged as a standard of reference in the international law of nationality. The Report of the UN Secretary General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009 (A/HRC/13/34), stated that “[T]he notion of arbitrariness could be interpreted to include not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability also” (para. 25).

A state may not categorically and without any legitimate reason (i.e. arbitrarily) prevent its citizens from acquiring a different citizenship. Inversely, a state may validly oppose the naturalisation of its citizens if its governmental interests outweigh both the interests of the concerned natural persons and the interests of the naturalising state. In that case, the refusal to release its national would not be arbitrary. A state’s refusal to release a national who continues to reside within its own territory is presumptively not arbitrary.

The Requirement of a Factual Connection

International law has traditionally required that there be a factual relationship between the person to be naturalised and the naturalising state. It has never allowed a state to confer its nationality by naturalisation upon persons possessing the nationality of another state and to whom the conferring state has no factual relation at all. Read the rest of this entry…

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Passportisation: Risks for international law and stability – Part I

Published on May 9, 2019        Author: 
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I. Fast track to Russian nationality

On 24 April 2019, the Russian President issued an Executive Order identifying groups of persons entitled to a “fast-track procedure” when applying for Russian citizenship otherwise regulated by the Russian Law on Citizenship (Federal Law No. 62-FZ of 31 May 2002). The decree facilitates the acquisition of Russian nationality by residents from various districts of Ukraine’s Donetsk and Lugansk regions, notably without taking residency in Russia. The regions border Russia and are struck by a military conflict between the central government and separatist forces under heavy involvement of Russia. On 1st May 2019, the President issued a second “Executive Order on Certain Categories of Foreign Citizens and Stateless Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship”. The new fast track procedure is potentially open to around 4 million people living in the conflict area of Eastern Ukraine.

In the Security Council of 25 April 2019, the representative of the Russian Federation explained “that there is a high demand for Russian citizenship among people from south-eastern Ukraine whose living conditions Kyiv has made intolerable. In other words, Russia’s legislative initiative is a response to the aspirations of many thousands of people. It is not we who are forcing them to become Russian citizens but rather they themselves who desire it. We are simply providing them with an opportunity and significantly simplifying the process. (…) Why was it done? The conflict in Donbas has been going on for five years. For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine. They were denied the right to vote in the recent presidential elections.” “[T]he residents of Donetsk and Luhansk (…) have been deprived of income sources, pensions and benefits that other Ukrainian citizens are entitled to. They would not have survived without Russia (…). The people of Donetsk and Luhansk deserve to have reliable State care and social protection once again. (…) They are getting none of that from the Ukrainian Government, and we therefore felt compelled to offer them assistance.” (Vassily A. Nebenzia, Security Council 8516th meeting, Verbatim Record, UN Doc S/PV.8516, p. 15-16). The decrees might also respond to the Ukrainian draft language law which establishes Ukrainian as the language of the state and relegates Russian to a regional language (Bill №5670-d, reading in Parliament on 25 April 2019, not yet in force ).

The recently elected President of Ukraine spoke of “another unprecedented interference of the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements. In addition, the Kremlin therefore deliberately and cynically violates international humanitarian law, which prohibits the occupation authorities from changing the citizenship of the inhabitants of the occupied territories.” (24 April 2019).

In the UN Security Council Meeting of 25 April 2019, numerous delegates criticised the Russian measures. The Slovak OSCE Chairmanship expressed “deep concern”.

The recent decrees inscribe themselves in an overall Russian policy of generously conferring its nationality on residents of those states which emerged from the break-up of the Soviet Union. In Crimea, an active Russian “passportisation” policy had allegedly been pursued since 1991, until the peninsula was annexed by Russia in 2014. In two breakaway territories of Georgia, Abkhazia and South Ossetia, passportisation was rampant especially around 2002 (see the analysis in: Independent International Fact-Finding Mission on the Conflict in Georgia, Report (“Tagliavini Report”), vol. II, Chapter 3). Russia also offers easy Russian nationality to inhabitants of Transnistria (in Moldowa).

This two part-blogpost shows that the Russian “passportisation” policy (i.e. the policy of conferring Russian nationality en masse to persons residing outside Russia) is in many respects exorbitant and risks to violate various principles of international law. Part One examines the governing principles, Part Two balances these principles, applies them to the current case, and examines the legal consequences of  exorbitant naturalisations.  Read the rest of this entry…

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Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 
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The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

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The Right to Development and Archaic Dichotomies in UNCITRAL ISDS Reforms

Published on May 2, 2019        Author: 
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Editor’s Note:  This is the concluding post in this week’s series of several posts critically examining the UNCITRAL ISDS reform process, which held its latest Working Group III meetings in New York on April 2019.  On Monday we featured the introduction from UNCITRAL Academic Forum Chair Malcolm Langford and our Contributing Editor Anthea Roberts, who summarized key points of contention raised by States as to the narrower procedural reforms to ISDS as the mandate of UNCITRAL Working Group III.  Posts on Tuesday (see here and here) from our Contributing Editor Anthea Roberts and her co-author Taylor St. John addressed geopolitical and ideological issues that affect ISDS reforms. On Wednesday, we featured a response post on Costs, from Susan Franck, Academic Forum Member and author of the new 2019 book, Arbitration Costs: Myths and Realities in Investment Treaty Arbitration (OUP, 2019).  EJIL:Talk! Editor Diane Desierto concludes this series, with observations drawn from her own public work today in Geneva, where she is serving as Resource Expert on Institutional Compliance with the Right to Development at the 20th Intergovernmental Working Group Session on the Right to Development, organized by the United Nations Office of the High Commissioner for Human Rights.

It would not have escaped our scrutiny from this week’s excellent posts by Malcolm Langford, Anthea Roberts, Taylor St. John, and Susan Franck that the UNCITRAL ISDS Reform debates of States are taking place with an occluded (if not opaque) understanding of the supposed position(s) of “developing countries”, or indeed, what their respective needs for reform and flexibility in UNCITRAL ISDS reforms are, as each developing country undertakes its desired reform path.  As my colleagues rightly pointed out this week, one cannot approach “developing countries” with a monolithic understanding (or perceived understanding) of a regional, categorical, or group approach. The World Bank dropped the classification of “developing countries” in 2016, given the lack of agreement over the definition of this classification and the deep geographic, topographic, economic, and political diversity even within ‘developing country’ groupings themselves. It is thus entirely obsolete, in today’s international economic system, to even keep assuming that the G77 Non-Aligned Movement of the 1970s would have any degree of settled unanimity today among them as to their respective foreign investment interests, all the more so since there are more capital-exporting States within the “Global South” that are themselves heavily investing across and within the “Global South”.

On the one hand, some “developing countries” have a disproportionately outsized titanic impact on global investment, especially China, which now singularly dominates the writing of the future of the terms of global infrastructure investment through its Belt and Road Initiative (BRI). China’s leading role in global infrastructure investment was on full display at the 2nd Belt and Road Initiative International Forum in Beijing last week, attended by most world leaders, notwithstanding concerns about the new “colonization” seemingly emerging from BRI projects whose terms, as described recently in The Financial Times, are often bilaterally negotiated within an opaque “mish-mash” of   debt-based infrastructure projects affecting about 62% of the world’s population but which still remain non-transparent to all investment affected stakeholders. On the other hand, some ‘developing countries’, such as low-lying island States comprising around 37 States and around 50 million people, face raging existential issues from the climate change onslaught, and continue to face investment treaty claims as respondent host States (e.g. Mauritius has 3 pending, Cabo Verde has 1 pending, Dominican Republic has 6, Barbados has 1, Guyana has 1, Trinidad and Tobago among many others in this UNCTAD list), while the low-lying island States remain just as beholden to take an ISDS system still largely being written by other States contributing to the very phenomenon causing their impending extinction.  

We do not hear much about the economic, political, structural, resource, fiscal, and negotiating power inequalities and asymmetries between and among the “Global South” of “developing countries” in the UNCITRAL ISDS reform debates.  The focus has been on identifying what “developing countries” supposedly think or prefer, rather than taking each State – at whatever stage of development – as they are in evaluating the impacts of the actual distributional decisions they are making today in the ISDS reform process, and particularly whether these decisions are consistent with their commitments to the right to development (and the full range of human rights capabilities encompassed by this right).  Leaving it to States to do this kind of analysis through their respective investment treaty programs, in my view, does not solve any collective action problems arising from the globalization of our ISDS system. Neither does it significantly advance peoples’ right to development when we allocate ISDS reform into ‘procedural’ (for UNCITRAL) and ‘substantive’ (for States in their respective individual investment treaty programs), or characterize individualized State preferences for investment dispute decision-making in shorthand as ‘the West and the Rest’.  The rigor demanded of us in our responsibility to realize the right to development should be an occasion for pause in our use of, and reliance on, all these constructs and dichotomies.

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Observations on Costs: A Response and Implications for UNCITRAL and ISDS Reforms

Published on May 1, 2019        Author: 
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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.  Monday’s introduction from our Contributing Editor Anthea Roberts and UNCITRAL Academic Forum Chair Malcolm Langford summarized key points of contention raised by States as to the narrower procedural reforms to ISDS as the mandate of UNCITRAL Working Group III.  In Tuesday morning’s post and Tuesday afternoon’s post, Contributing Editor Anthea Roberts and her co-author Taylor St. John address geopolitical and ideological issues that affect ISDS reforms. Today we feature a response post from Academic Forum Member Susan Franck, author of the new 2019 book, Arbitration Costs: Myths and Realities in Investment Treaty Arbitration (OUP, 2019).

We are in the midst of a unique political, legal, and psychological moment. UNCITRAL Working Group III’s effort will have a legacy that affects discourse about international economic dispute settlement for decades to come. It was, therefore, with great interest, that I read the Academic Forum’s submission on EJILTalk! on costs, as costs are at the forefront of the debate.

International arbitration costs are part of what motivated my own research agenda. Whether it was my 2005 article, Legitimacy Crisis in Investment Treaty Arbitration, where I made claims about the costs of investment treaty arbitration (ITA) with a limited set of anecdotal information, or my later articles, Empirically Evaluating Claims and Rationalizing Costs, where I confronted the cold reality that I had not systematically tested my earlier assertions and instead corrected my error by offering data.

As my most recent book, Arbitration Costs, explains that ITA costs are “the dull knife that cuts both ways,” I found the framing of the cost-related mandate to be somewhat unfortunate, namely an exploration of “Excessive Costs and Insufficient Recoverability of Cost Awards.” Students of psychology know that the framing of questions affects the information sought, the processing of derivative information, and subsequent decisions. Rather than focusing on costs and cost recoverability generally—which are important concerns that should be of interest to all stakeholders—the evocative framing creates challenges for balanced and holistic analysis. As Chapter 2 of Arbitration Costs explores cognitive illusions, that likely influence debates about ITA and that my previous experiment with Anne van Aaken and others demonstrated affect arbitrator decision-making, it is vital to acknowledge that illusions of framing, negativity, and confirmation bias, among others could skew both the conversations and derivative choices at a critical inflection point. 

There are undoubtedly many thoughtful aspects of the post.  The most valuable relate to focusing on: (1) raw descriptive arbitration costs, (2) factors tribunals should consider in making cost assessments, and (3) highlighting the importance of security for costs. The observations nevertheless require a degree of caution and may benefit from rebalancing, lest policy reform presumably designed to be helpful nevertheless generate negative externalities.

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UNCITRAL and ISDS Reforms: The Divided West and the Battle by and for the Rest

Published on April 30, 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.  Yesterday’s introduction from our Contributing Editor Anthea Roberts and UNCITRAL Academic Forum Chair Malcolm Langford summarized key points of contention raised by States as to the narrower procedural reforms to ISDS as the mandate of UNCITRAL Working Group III.  The next series of posts this week focus on broader issues and substantive questions that suffuse the reform process. Today, Contributing Editor Anthea Roberts and her co-author Taylor St. John address geopolitical issues that inevitably affect ISDS reforms. Anthea Roberts attends UNCITRAL Working Group III as part of the Australian delegation but she acts and writes in her independent academic capacity. Taylor St John attends UNCITRAL as an observer from PluriCourts, University of Oslo.

The UNCITRAL debates over ISDS reforms can serve as a real-world laboratory for observing changes in the national interests and policies of different countries, as well as shifts in their geopolitical weight and alignments. As part of a commitment to transparency, UNCITRAL decided to allow a wide range of observers in the room and to make recordings of the debates available. Such transparency gives non-state actors a chance to analyse these dynamics in real time and to consider not only what they mean for ISDS reforms but how they reflect and reinforce broader shifts in international economic governance. During the latest Working Group III meeting in April in New York, we observed a divided West and an emerging battle by and for the Rest.

The Divided West

The ISDS reform debates reached UNCITRAL despite a division within ‘the West.’ For multiple reasons, most notably that ad hoc investor-state arbitration had become politically toxic within Europe as a form of ‘private justice,’ the European Union proposed the creation of a multilateral investment court. Although initially reluctant to bring these issues to UNCITRAL, the European Union and Canada ultimately supported these reform debates going forward within a multilateral UN body. Other significant powers, including the United States and Japan, were opposed to both the creation of a court and these reform debates going forward in UNCITRAL. Read the rest of this entry…

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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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