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Home Archive for category "International Law and Domestic Law"

Ukrainian Eurobonds and Russia’s Compliance with International Law: Matters Suitable for Summary Judgment in the English Courts?

Published on October 9, 2018        Author: 
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In mid-September the Court of Appeal of England and Wales handed down its judgment in Ukraine v The Law Debenture Trust Corporation P.L.C. (‘Ukraine v Law Debenture’), in which it decided Ukraine’s appeal against an order for summary judgment for the payment by Ukraine of just over USD 3 billion. The application for summary judgment followed Ukraine’s decision to stop making payments under notes it issued in 2013, which are held exclusively by Russia. Law Debenture Trust Corporation plc (‘Law Debenture’), a trustee acting at the direction of Russia, made the application on the basis of the trust deed by which the notes were constituted, which is governed by English law and which empowers the Russian Ministry of Finance to direct Law Debenture to take enforcement proceedings against Ukraine. The domestic nature of the claim notwithstanding, Ukraine argued, inter alia, that Russia violated international law and that this provided grounds to refuse payment under the notes. It is on the Court of Appeal’s approach to these arguments that this post focuses.

Ukraine’s arguments and international law

It is in relation to two of Ukraine’s arguments – a defence of duress; and entitlement to refuse payment on the basis that it was taking a countermeasure against Russia – that Russia’s compliance with international law was called into question. The significance of Russia’s compliance with international law to the latter argument is clear. The relevance of international law to the former argument resulted from Ukraine’s claim that the issuance of notes ‘was procured by unlawful and illegitimate threats made, and pressure exerted, by Russia, such as to vitiate the consent of Ukraine…’ (Ukraine v Law Debenture para 17). More specifically, Ukraine alleged that Russia made threats which violated, inter alia, the prohibition on the threat of force and relied also on the imposition of and threat of allegedly unlawful restrictive trade measures as further evidence of duress (ibid para 166).

According to Blair J, neither the defence of duress nor the countermeasure-based argument could be considered on their merits, since the foreign act of state doctrine renders them both non-justiciable. ‘Ukraine’s case to the contrary has no real prospect of success’ (see here, paras 295, 308 and 365). While the Court of Appeal also dismissed Ukraine’s countermeasure-based argument, it did so for a different reason: the absence of a domestic legal basis which permits or requires an English court to ‘examin[e] it or pronounc[e] upon [its] merits’ (ibid para 189). In relation to the defence of duress, however, which has a domestic legal basis and to which, in the court’s view, Russia’s compliance with international law is relevant, the court held Ukraine to have ‘a good arguable case’ that the foreign act of state doctrine is inapplicable (Ukraine v Law Debenture, para 181). Read the rest of this entry…

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The Bolton Speech: The Legality of US Retaliatory Action Against Judges and Officials of the International Criminal Court?

Published on September 14, 2018        Author: 
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The speech given on Monday by John Bolton, US National Security Adviser, threatening action by the US against the International Criminal Court (ICC) in response to potential ICC investigation of US personnel with regard to the situation in Afghanistan has generated a lot of interest (see herehere, here and here). There are a plethora of policy and political issues raised by the looming clash between the ICC and the US which have been set out on other blogs in recent days (here and here). In terms of the legal issues, we are back to the old debate about whether the ICC is entitled to exercise jurisdiction over nationals of non-party states, in the absence of a referral by the UN Security Council (on which see this 2003 article of mine and this recent post in response). This post addresses whether the actions that Bolton says the US will take against Judges and ICC officials would be lawful under international law. Bolton says that the US:

“… will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

In particular, I wish to focus on whether the US would violate international law by banning ICC judges and officials from entering the US. Even if the US were to seek to prosecute ICC personnel, it is unlikely that it would obtain custody over them (unless other states cooperate with the US). The primary effect of such attempted prosecutions would be to prevent those people from entering the US, in fear of being arrested.

Barring ICC personnel from entry into the US is a significant issue because (i) the meetings of the ICC Assembly of States Parties are held at the United Nations Headquarters in New York every other year; (ii) the ICC Prosecutor goes to the Security Council, at its request, to report to the Council on the situations referred to the Court by the Council; and (iii) the President of the ICC presents a report, on the work of the Court, to the UN General Assembly annually. All of these activities and visits will have to stop if the threat by John Bolton (either to prosecute or to ban ICC judges and officials) were to be carried out.

Does the US have International Legal Obligations Preventing  it from taking Retaliatory Action  Against ICC Personnel?

To the extent that US retaliatory actions against ICC personnel  take place within the US, the starting position would be the US can control entry into the US, prosecute people who in its view threaten US security (probably based on the protective principle of jurisdiction) and sanction funds in the US unless such acts are inconsistent with contrary obligations under international law.

Read the rest of this entry…

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Can Intergovernmental Commerce in Human Organs be Legal?

Published on August 23, 2018        Author:  and
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States prefer when their national legislations conform with international law. However, assessing conformity can sometimes be complicated. One may think of a situation where national legislation mandates doing something the state has internationally undertaken not to do, and concluding treaties to serve as the international legal basis for doing so. Should such legislation be regarded as compliant with international law? Can such treaties really remove the prohibition? Such a situation is here exemplified by Ukraine’s new act on organ transplantation (available only in Ukrainian). Although not yet applicable, the act poses a number of difficult questions in relation to both substance and theory.

As to the substance, trafficking in human organs, as well as any other form of human body, commodification is universally condemned on ethical grounds, and prohibited under international law. Where such acts are committed by individuals or entities, the law is relatively clear on responsibility. This clarity dissipates once the possibility of intergovernmental procurement is considered. Hence, as to the theory, a question arises as to whether a state violates international law where it permits the purchase and sale of human organs through its authorised agents in accordance with treaties concluded to that effect. To answer this question, this post will highlight the relevant provisions of Ukraine’s recent legislation, which seem to contravene international standards, and analyse the normative nature of these standards.

Ukraine’s New Transplantation Act Read the rest of this entry…

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Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany

Published on August 13, 2018        Author:  and
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In 2015, German State officials began referring to the atrocities committed by Imperial German soldiers in today’s Namibia between 1904 and 1908 as ‘what would now be called genocide’. This paradigm shift sparked considerable societal debate about Germany’s long neglected colonial past – finally, one might say. Although an official apology is still lacking, Germany and Namibia are currently addressing this ‘terrible chapter in history’ at an inter-State level. Despite this diplomatic progress, however, and much to the dismay of many descendants of victims of the German colonial era, individual compensation is not a subject of those negotiations. On 5 January 2017, various Herero and Nama representatives filed a (subsequently amended) class action complaint against Germany in the New York Southern District Court, which addresses both past and present day issues (for an overview of the case see here and here). The plaintiffs, first, request compensation for ‘the horrific genocide and unlawful taking of property’ by Germany (complaintpara 1). Secondly, the plaintiffs ask the Court to declare that their exclusion from the ongoing negotiations between Germany and Namibia violates international law (ibid. para 2).

After more than one and a half years of proceedings, things now seem to be getting serious. At a ‘pre-trial conference’ held on 31 July, both parties pleaded for the first time on the delicate question of the Court’s jurisdiction. This short contribution focuses on whether and to what extent Germany is entitled to claim immunity from jurisdiction. It then analyses at which point of the proceedings this immunity would be (or has already been) violated, and considers possible implications of the case from an immunity perspective and beyond.

Can Germany claim immunity from jurisdiction?

Deriving from the sovereign equality of States, jurisdictional immunity protects States from being subjected to the jurisdiction of courts in another State. It is widely accepted in contemporary international law that States only have an obligation to give effect to this immunity for another State’s acta jure imperii. The ICJ defined these as ‘exercises of sovereign power’ (Jurisdictional Immunities, para 60), as distinct from States’ private and commercial activities (acta jure gestionis), which are excluded from the scope of immunity.

Today’s negotiations between Germany and Namibia – the object of the plaintiffs’ second request – touch upon issues such as inter-State compensation (and other forms of redress). Such matters can only be settled by States acting in sovereign capacity, i.e. by way of acta jure imperii. The various acts of the colonial era – the objects of the plaintiffs’ first request – have to be distinguished. The genocidal crimes were committed by Imperial Germany’s armed forces in military operations. A State’s armed forces typically exercise sovereign power. The situation is less clear when it comes to the takings of property. The plaintiffs seem to argue that these were sovereign acts (complaint, para 39). Yet, the German authorities also stripped many Herero and Nama of their belongings by (grossly unfair) contracts. If viewed as private law agreements, these might constitute acta jure gestionis. From an international law perspective, a more nuanced assessment of the different forms of colonial wrongs could therefore have been a promising strand of argument for the complaint. Read the rest of this entry…

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What implementation of judgments looks like – or doesn’t? –: the case of the Molina Theissen family in Guatemala

Published on July 2, 2018        Author: 
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On 27 September 1981, Emma Molina Theissen, member of the Patriotic Labor Youth, was detained by the armed forces and taken to the “Manuel Lisandro Barillas” Military Barracks (MLB-MB), where she was subjected to psychological and physical torture, including sexual violence. She was deprived of food and water, losing so much weight that, after nine days, on 5 October, she was able to slip off the handcuffs and escape. Attempting to recapture her, on 6 October, members of the Army went to the family residence, searched the house and, not finding her, took her 14-year-old brother, Marco Antonio. Their mom, Doña Emma Theissen Álvarez de Molina, witnessed everything. Marco Antonio remains disappeared since that date. While the family was forced into exile, they have never stopped searching for him and have never ceased in their efforts to obtain truth, justice and reparation.

This post, product of the ESRC Human Rights Law Implementation Project, explores the domestic-international interplay regarding implementation of reparations ordered by the Inter-American Court of Human Rights (IACtHR) in the Case of Molina Theissen vs. Guatemala; more specifically, in relation to the historical domestic proceedings of early 2018. Read the rest of this entry…

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Here Comes the Name Again: Treaty Making at the Epicenter of the Greek Debate over the agreement with the former Yugoslav Republic of Macedonia

Published on June 16, 2018        Author: 
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This week, the Prime Ministers and Foreign Ministers of Greece and the former Yugoslav Republic of Macedonia reached agreement over the long running dispute regarding the name of the latter. After independence from the Socialist Federal Republic of Yugoslavia, the former Yugoslav Republic continued to use the name it had used as an entity within Yugoslavia, namely the Republic of Macedonia. Greece objected strongly to the use of this name and over the last 25 years or so we have seen sanctions imposed, Security Council Resolutions with provisional designations, an Interim Accord in 1995 and a case before the ICJ which culminated in a 2011 decision finding a violation of that Accord on the part of Greece due to its objections to fYR Macedonia being invited to join NATO in late 2008.

The agreement provides for the use erga omnes of the name ‘Republic of North Macedonia’ as the name of fYR Macedonia, makes provision for other eventualities, such as adjectival uses, commercial brands and designations, and cooperation between the two states in various areas including defence, and seemed to have finally brought resolution to this bizarre dispute. Not so fast. In the last few days, provisions of the Vienna Convention on the Law of Treaties and general international law regarding treaty making powers and the process of signature, ratification, and entry into force, have made their way to the epicenter of the Greek debate over the matter. In an article on 11 June 2018 in the Greek conservative daily Kathimerini[link in Greek], Georgios Gerapetritis, a Professor of Public Law at the University of Athens, argued that by signing the agreement, the Greek Prime Minister (or, as the case actually is, the Foreign Minister) would be binding Greece to the obligations under the Convention irrespective of its (domestic) ratification by the Greek Parliament, which only serves to introduce the treaty into domestic Greek law. This would expose Greece to international responsibility.

 

The argument is flawed. Read the rest of this entry…

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Achmea: The Fate and Future of Intra-EU Investment Treaty Awards under the New York Convention

Published on May 8, 2018        Author: 
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On March 6, 2018, the CJEU rendered its judgment in the long-awaited Slovak Republic v. Achmea case (Case C-284/16). This case involved a preliminary reference from the German Bundesgerichtshof in the context of setting aside proceedings initiated by Slovakia against a 2012 award, which was rendered by an investment tribunal in accordance with the UNCITRAL Rules under the BIT between the Kingdom of Netherlands and Czech and Slovak Federative Republic, in force since 1992. Based on its analysis of certain provisions of the EU Treaties (TEU and TFEU), the CJEU ruled that an Investor-State Dispute Settlement (“ISDS”) provision in an intra-EU is not valid under EU law.

Thus far, the academic discussion surrounding the case has focused on the fate and future of Intra-EU BITs (see here and here) but has not ventured into the consequences of the decision for the arbitral awards rendered under these BITs. Since the Achmea decision forms part of EU law and is binding on the national courts of all EU Member States, it reasonably follows that national courts within the EU must now refuse to recognize and enforce non-ICSID awards based on ISDS provisions in intra-EU BITs. However, under Article III of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (“New York Convention”), national courts within the EU also have an obligation to recognize and enforce arbitral awards except where one or more of the seven grounds under Article V apply. This piece utilizes this legal conflict that courts within the EU now face as its starting point and explores the practical implications of the Achmea decision through the lens of Article V of the Convention, focusing on two grounds in particular: violation of public policy and invalidity of the arbitration agreement. Read the rest of this entry…

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Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

Published on April 3, 2018        Author: 
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The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities. Read the rest of this entry…

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Can the ECtHR provide an effective remedy following the coup d’état and declaration of emergency in Turkey?

Published on March 19, 2018        Author: 
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The question posed in the title of this post has been discussed in various blogs suggesting that recent decisions of the ECtHR rejecting cases for non-exhaustion of domestic remedies have been politically motivated.  I recently discussed this issue at a meeting organised by the Law Society in conjunction with the German Bar Association (DAV) in Berlin on 5th March 2018. 

Let me say from the outset that I will argue that this question, for someone who has worked for many years with the Court (ECtHR) and who has dealt with many Turkish cases, is not the right question to ask.

From my perspective, the right question to ask is not whether the Court is capable of offering an effective remedy to Turkish citizens – of course it is – BUT rather when, and under what circumstances, will the Court offer such an effective remedy? 

As you can readily appreciate, this is a more positive formulation which better accords to reality.  After all, we would not doubt the capacity of the UK Supreme Court or the German Constitutional Court to offer effective remedies for violations of fundamental rights. So, why should we doubt the capacity of the European Court to do so given its proven track record of upholding Convention (ECHR) principles, often in the face of vitriolic criticism from states and others?

Subject to that reservation, I make the following remarks about the matter. Read the rest of this entry…

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

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