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The Nature of Investors’ Rights: A Reply to Martins Paparinskis

Published on October 23, 2013        Author: 
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Jessica HowleyJessica Howley is partway through a DPhil at Magdalen College, University of Oxford.

 

In his EJIL article, Martins Paparinskis outlines how the rules of State responsibility, developed in the interstate context, apply in claims between individuals and States in the field of investment law (p 619). He proposes three alternative views one might take of the nature of the ‘rights’ accorded to investors under investment treaties: that they are ‘direct rights’, similar to those found in the regime of human rights (p 622-623); ‘third party rights’, akin to those accorded by treaty parties to third states under Article 36 of the Vienna Convention on the Law of Treaties (p 624); or ‘delegated rights’, where the individual is an agent exercising rights that belong to their home State (p 625).

Paparinskis details the implications of each approach to investors’ rights for various aspects of State responsibility, including for the purposes of reparation, the application of circumstances precluding wrongfulness and the implementation of responsibility (p 619-620), elucidating the practical effects that flow from adopting a particular perspective on investors’ rights. He expressly does not seek to reach a definite conclusion on which of these is the correct approach to take (p 626). He does, however, offer some thoughts on the appropriateness of relying on the human rights paradigm in the investment context.

While noting the functional similarity between many of the rights in the investment and human rights fields, Paparinskis argues (and affirms in this EJIL: Talk! post and a forthcoming chapter available here) that human rights and investment law differ in the key respect that investors choose to become investors, with investment law protections designed to entice an investor to invest in a particular State (p 623). Conversely, one falls under the protection of a given human rights regime not as a matter of choice but simply by virtue of being human. This leads the author to suggest that rights in investment law might be ‘better captured’ by viewing them through the lens of third party rights, rather than from a human rights perspective (p 624).

The purpose of this post is to query the extent to which the choice of the investor provides a useful way of thinking about which of the three models of investors’ rights is most appropriate. Read the rest of this entry…

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The Nature of Investor’s Rights under Investment Treaties: A Comment on Paparinskis’ “Investment Treaty Arbitration and the (New) Law of State Responsibility”

Published on October 22, 2013        Author: 
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Gourgourinis_photoDr Anastasios Gourgourinis is Lecturer in Public International Law at the National and Kapodistrian University of Athens Faculty of Law, and Research Fellow at the Academy of Athens.

Martins Paparinskis’ EJIL Article argues that the conceptual challenges faced by contemporary investment treaty arbitration can be effectively addressed if the regime is not viewed in isolation from its progeny, i.e. international human rights and consular law, the law of treaties and the law of diplomatic protection. The discussion in Paparinskis’ piece is essentially centred on the debate regarding the character and nature of investors’ rights under international investment agreements (IIAs), i.e. either as direct or derivative rights. Paparinskis address the nature of investors’ rights under IIAs from the terminologically different, but contextually similar, lens of the models of direct rights, beneficiary rights, and agency. He explicitly declines to take a firm position regarding which of these models is the most plausible one, but he appears, at least in my eyes, more prone to side with the direct rights model, especially in view of the analogies with human rights law (see also his analysis here). This is where we will have to part ways, and in this post I take issue with this, largely drawing from my chapter on the direct/derivative rights debate.

Below, I take issue with the idea that an investor may be considered as a holder of direct rights akin to human rights. Although Paparinskis does a tremendous job in drawing normative parallels between the two regimes, I remain of the  view that the very different nature of obligations derived from human rights instruments and IIAs cautions against such an approach, and rather supports the derivative model of investors’ rights. The debate over the direct or derivative nature of investors’ rights received full treatment in the seminal BYBIL article by Zachary Douglas and evidence that it is  ongoing and growing, is manifested by the fact that during the recent 2013 ILA Regional Conference in Sounion, Greece, three papers touching upon these and similar issues were presented (see here, here and here). Read the rest of this entry…

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Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 
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Martins PaparinskisI am grateful to EJIL:Talk! for hosting the discussion of my article and chapter. I am privileged to have Anastasios Gourgourinis, Jessica Howley, and Robert Howse as discussants. In the following paragraphs I summarise the main arguments made in the article and the chapter.

The starting point of the argument is that investment law partly borrows and partly diverges from pre-existing regimes of international law. An interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the meaning of particular terms, broader systemic structures, and underlying secondary rules. In order to situate investment protection law within the broader international legal order, an interpreter might draw upon multiple legal techniques from established legal regimes. Within the four corners of international law reasoning, the models of direct rights, beneficiary rights, and agency are the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection. A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law.

The EJIL article under discussion examines whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In yet other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The forthcoming chapter applies the same analytical perspective to the law of treaties, examining rules on interpretation and treaty-making through the lenses of other regimes of international law. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.

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Discussion of Martins Paparinskis’s Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 
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This week we will be hosting a discussion of Martins Paparinskis’s EJIL article, Investment Treaty Arbitration and the (New) Law of State Responsibility, and his related forthcoming chapter, Analogies and Other Regimes of International Law. Martins  is a Lecturer in Law at the University College London and a book review editor of the Journal of World Investment and TradeHis article  will be subjected to careful scrutiny this week by Anastasios Gourgourinis (Lecturer, National and Kapodistrian University of Athens), Jessica Howley (DPhil Candidate, Oxford), and Robert Howse (Professor, New York University). We are grateful to all four for agreeing to have this discussion here.

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Apartheid in Occupied Palestine: A Rejoinder to Yaffa Zilbershats

Published on October 2, 2013        Author: 
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 dugardJohn Dugard (pictured left) is Emeritus Professor of John ReynoldsInternational Law at the University of Leiden and Honorary Professor in the Centre for Human Rights at the University of Pretoria. John Reynolds (pictured right) is the EJ Phelan Fellow in International Law at the National University of Ireland, Galway.

‘Upper Nazareth is a Jewish city and it’s important that it remains so’, wrote its mayor Shimon Gapso last month. ‘If that makes me a racist’, he continued, ‘then I’m a proud offshoot of a glorious dynasty of racists’. Gapso was responding to criticism he had received over his call for the preservation of Jewish Israeli demographic superiority over Palestinians in his jurisdiction. He sought to undercut such criticism by situating his views as merely symptomatic of the core tenets of Zionism. His position, he suggested, is no more or no less racist than Herzl or Ben-Gurion and the pioneering Jewish settlement—with inevitable removal of Palestinians—that they espoused. While Gapso makes this admission of racism rather facetiously, so as to expound the ‘hypocrisy and bleeding-heart sanctimoniousness’ of his liberal Israeli critics, his comments go to the heart of Israeli policy vis-à-vis the Palestinians historically and contemporaneously: colonisation, displacement, and segregation. In pointing to security issues and the diverse political, socio-economic and cultural needs of the two population groups, Gapso essentially reproduces the vision of “separate development” that was central to apartheid in southern Africa. Apartheid was presented by its Afrikaner architects as not about oppression or denial of self-determination, but “separateness”.

Gapso’s comments mark the latest round in an ongoing debate over the role of ethno-racial dynamics in Israeli policy-making, and the nature of Israel’s institutional and legal regimes as they apply to the AbuDisWallPalestinians. They came in the context of the relationship between Israeli authorities and Palestinian citizens inside the state’s borders. They are equally and arguably more prescient when considered in relation to the occupied Palestinian territories, where the narrative of an Israeli apartheid-like regime has gained particular prolificacy in popular and political discourse since the 1990s. More recently, the relevance of the normative prohibition of apartheid as articulated through the specific language of international law has come to the fore. Our article in the current issue of the European Journal of International Law explores international law’s engagement with questions of race, racial discrimination and apartheid. It considers the nature of Israel’s occupation of the Palestinian territories in that light, and concludes that the regime of discrimination and segregation imposed in the occupied territories is of a sufficiently institutionalised nature to be qualified as a system of apartheid. (photo: Israeli wall at Abu Dis, credit)

Yaffa Zilbershats’ reply  to our article roots itself in the familiar refuge of Israeli exceptionalism, and parrots two standard talking points of Israeli government lawyers. The first is that as a mere occupying power, Israel’s behaviour in the Palestinian territories is not susceptible to the same standards by which a sovereign state would be judged. The second is that because Palestinians have committed acts of “terror”, Israel’s behaviour is not susceptible to the same standards by which a sovereign state would be judged. Both of these points are supported by almost exclusive reference to Israeli court decisions.

Occupation and Apartheid: “Apples and Oranges”

Zilbershats suggests that because Israel occupies the Palestinian territories without having formally annexed them (disregarding the fact that in the case of East Jerusalem it has done so), the state is bound there only by the laws of armed conflict. Israel can exempt itself from other spheres of international law, including, apparently, the prohibition of apartheid; its status as a jus cogens norm and explicit inclusion in the laws of armed conflict themselves notwithstanding. Zilbershats argues that, by asserting that regimes of apartheid and occupation can (and do) occur simultaneously, our article is guilty of ‘comparing apples and oranges’.

Apart from erasing several decades of Namibian history, this claim obscures the present reality that Israel’s colonisation of Palestinian territory goes far beyond the image of a temporary occupation that Zilbershats conjures up. With this “temporary” situation now approaching fifty years as the status quo and the settlement enterprise continuing apace, it is not merely a regime of belligerent occupation but also one of expansionary settler colonialism. Read the rest of this entry…

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Regulating Resort to Force: A Response and Thanks to Corten

Published on May 2, 2013        Author: 
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Matthew Waxman is Professor of Law at Columbia Law School, New York.

In the latest issue of EJIL, I write about doctrinal form and jus ad bellum in ‘Regulating Resort to Force: Form and Substance of the UN Charter Regime’, 24 EJIL (2013) 151. Much of the legal debate in this area – among states, scholars, and other international actors – takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions: are they too broad or narrow; too permissive or restrictive?  In this article, I argue that these debates also sometimes explicitly or implicitly include preferences regarding doctrinal form, by which I mean modes of argumentation and analysis through which facts are assessed in relation to legal directives.

Adherents to one orientation, whom I term ‘Bright-Liners’, generally favour governing states’ legal authority to use force unilaterallyby clear and rigid rules that admit little case by case discretion. Adherents to another orientation, whom I term ‘Balancers’, generally believe that the legality of unilateral resort to force should be judged by objective but flexible standards that call for weighing contextual factors, thereby vesting in states some discretion to account for competing values.

 The main point of my paper is that substantive preferences – narrow versus broad international legal authority to use force – often go hand in hand with doctrinal form preferences (i.e. those favouring restrictive authority to use force generally prefer bright-line rules), but that they need not.  By prising apart the substantive debate from the debate about doctrinal form, and analyzing some of the reasons why one form might be better than another, I expose some conflicting but often-buried assumptions about how international law works or fails in this area, and I aim to open up some underappreciated ways to think about legal reform. Read the rest of this entry…

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A Response to Noam, Gina, Thomas and Mary Ellen

Published on April 29, 2013        Author: 
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David Kretzmer is Professor Emeritus, Hebrew University of Jerusalem and Professor of Law, Sapir Academic College.

Many thanks to the editors of the EJIL for selecting my article for discussion on the blog and to Noam, Gina, Thomas and Mary Ellen for their thoughtful and perceptive comments.  These comments provide me with the opportunity of clarifying some of the points I raised in the article and expressing my view about issues that I failed to consider.

The discussion in my article was confined to use of force in exercise of a state’s inherent right to self-defence, recognized in article 51 of the UN Charter.  I did not consider humanitarian intervention, nor use of force authorized by the Security Council under article 42 of the Charter.  However, Gina is quite right in concluding that my analysis of unilateral use of force by states implicitly rules out unilateral humanitarian intervention.  Any decision on such intervention must be a collective one taken by the SC under Chapter VII. ( I shall not discuss the controversial view of the Independent International Commission on Kosovo that there may an intervention which while unlawful is nevertheless legitimate.)  While article 42 speaks of forcible action “as may be necessary to maintain or restore international peace and security” I fully accept Mary Ellen’s view that such action must also meet the demands of proportionality.

What is the place of the “narrow proportionality” test in jus ad bellum?  Thomas points out that while intimating that this test does indeed have such a place I neglected to develop the issue.  Following the line of just war theory, Mary Ellen argues that the very essence of proportionality in jus ad bellum involves “weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end.”  While Thomas mentions that there is little, if any, authority on which one can “conclude that the law on the use of force already includes a ‘narrow proportionality’ criterion” it seems to me that such a criterion is inherent in the very notion of proportionality.  Hence, as in other contexts in which the means-end proportionality test is employed, some “cost-benefit” analysis must indeed be part of the jus ad bellum test too.

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Weighing the Cost of War: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 24, 2013        Author: 
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Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution–Kroc Institute, University of Notre Dame

One of the most important points that David Kretzmer makes in his detailed analysis of the principle of proportionality in the jus ad bellum is the following: The question of “[p]roportionality arises … only when the aim or ends pursued [through resort to military force] are legitimate.  When it comes to state liability, if those ends are illegitimate all forcible measures used will ipse facto  be illegitimate, whether they are proportionate or not.” The ends of military force are legitimate only if they conform to an exception to the United Nations Charter Article 2(4) prohibition on the use of force, meet the requirements of the law of state responsibility, and comply with the general principle of necessity.  Proportionality involves weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end.  Assessing proportionality as a distinctive requirement of lawful resort to force only makes sense when the other conditions on lawful resort to force are also met. Read the rest of this entry…

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Ius ad bellum Proportionality is More Complicated Still: A Response to David Kretzmer

Published on April 22, 2013        Author: 
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Thomas Liefländer is a doctoral candidate at St Hugh’s College, University of Oxford

Any attempt to come to terms with the notion of proportionality, be it in the context of the use of force in self-defence or anywhere else, has to grapple with a number of questions. First, what is the nature of the applicable proportionality test? Possible answers include ‘tit-for-tat’, ‘not-more-than-necessary’ or the ‘narrow proportionality test’ which assesses whether the ‘good’ effects of a measure outweigh its ‘bad’ effects. Secondly, once this question is settled, a more precise definition of the various factors going into the proportionality equation and how they interrelate is needed. Finally, how is each factor to be assessed under the conditions of epistemic and normative uncertainty that exist in the real world? Depending on the context, the answer to any one of these questions can be straightforward or very difficult. In self-defence, it seems, they are mostly difficult.

Professor Kretzmer’s recent EJIL article tackles some of these questions. He focuses, in particular, on the definition of the legitimate ends of self-defence and how they impact on the proportionality test. In summary, he first suggests that the definition of legitimate goals can determine whether a ‘tit-for-tat’ or ‘not-more-than-necessary’ test is applicable. Secondly, identifying the legitimate aims is crucial for being able to apply both the ‘not-more-than-necessary’ and the ‘narrow proportionality’ test, as both relate action taken in self-defence to the good (ie the legitimate ends) it intends to achieve. In these two respects, Professor Kretzmer’s contribution is outstanding. His work will certainly focus the discussion on the centrality that the definition of legitimate ends has both for self-defence in general and the issue of proportionality in particular. However, in stressing this particular aspect Professor Kretzmer may have downplayed the role of the remaining questions to some degree. I shall outline the important questions that Professor Kretzmer’s article essentially leaves open. In doing so, I will briefly touch on (1) the status of the ‘narrow proportionality’ test, (2) the ‘means’ side of the ‘means-end/not-more-than-necessary’ test, and finally (3) on the more general issue of proportionality-assessments under epistemic and normative uncertainty. My intention is not so much to challenge Professor Kretzmer’s arguments, but rather to extend – but not complete – the picture of what it is that we argue about when proportionality is in issue.

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Is it the right time to reconsider jus ad bellum proportionality?: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 18, 2013        Author: 
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 Dr Gina Heathcote is a lecturer at SOAS, University of London

I shall begin by answering the question posed in my title in the negative.  The very technical and detailed discussion of the scope of jus ad bellum self-defence, as is found in David Kretzmer’s article, plays down the contemporary spaces where the Charter is being re-imagined by States. The post-millennium era has been characterised by state practice that seems to conveniently forget the constraints of the Charter structure, in particular the importance of Articles 2(3) and 2(4) of the Charter, in favour of unilateral force. In returning to the scope and permission embedded in the principle of proportionality, Kretzmer acknowledges but neatly avoids contemporary debates on the use of force in humanitarian crisis and the use of targeted strikes through identification but little analysis of the rhetoric, practice and confusion of the vast literature that has characterised post-millennium debates on jus ad bellum. This is an unfortunate consequence of Kretzmer narrowing in on, first, a component of the use of force (self-defence) and, second, to a specific aspect of that component (proportionality). This avoids looking, seeing or acknowledging the harm – the deaths – caused by targeted strikes and the consequences of both collective and unilateral interventions justified on humanitarian grounds, allowing international lawyers to retell stories of technical legal knowledge that are far removed from ‘what we talk about when we talk about war’ (see B.Stark ‘What We Talk about When we Talk about War’, 32 Stanford Journal of International Law (1996) 91). Read the rest of this entry…

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