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Home Archive for category "International Law and Domestic Law"

Stability vs. Flexibility: Can the European Union find the Balance?

Published on April 25, 2017        Author: 

To what extent can a State forego its contractual commitments, in particular those arising from a stabilization clause for human rights and environmental protection? (“under a stabilization clause, the host State commits itself either not to enact changes of the domestic law in the future, or at least, not to apply such changes to the investor”, Ohler, Concessions, Max Planck Encyclopedia, 2009.) Our assumption is that stabilization clauses and states’ rights to regulate should be integrated and not be taken as opposite obligations, considered as incompatible. In other words, if framed correctly, stabilization clauses can balance the two conflicting needs at stake: the sanctity of contract and a state’s right to regulate to protect its public interest (Leben, L’évolution de la Notion de Contrat d’État, Revue de l’arbitrage, 2003; Carbone, Luzzatto, Il Contratto internazionale, 1996; Giardina, State Contracts, national versus international law, The Italian Yearbook of international law, 1980; Fatours, International Law and International Contract, 1980; Mann, State Contracts in International Arbitration, 1967).

This post examines whether the (fairly) new European exclusive competence on foreign direct investment changes the way stabilization clauses should be framed in EU State contracts to avoid potential conflicts. There are two different kinds of possible conflicts that could arise: first involving either provisions among themselves, or second, the two different legal regimes at stake (the international and the European).

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“Complicity in International Law”: Author’s Response

Published on April 14, 2017        Author: 

This post is the final part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Introduction

I am grateful to Oxford University Press and the editors of EJIL:Talk! for putting together this discussion and to Elies, Elizabeth, and Helmut for their contributions. I appreciate their engagement with my work. In this piece, I consider the central points in each of their pieces.

State Assistance in Practice

Elizabeth’s three examples – the provision of arms, the use of military bases, and the grant of financial and other assistance to the justice and human rights sectors – provide a helpful grounding for considering how often questions of complicity are arising in practice. Her contribution zeroes in on the difficulties relating to the nexus element and the fault element. Taking them in turn, there are slightly different difficulties here.

As to the nexus element, even if we agree on the normative standard there is the challenge of applying that standard across the myriad ways that states provide assistance to other states. We can quite easily imagine situations where the assistance is insufficiently connected to the principal wrong, just as we can easily imagine situations where the standard is met. Beyond those poles, things are very difficult. That might seem unsatisfactory, but here it is worth emphasising the relative newness of the rule – it is still embedding itself into customary practice. As it does so, we are likely to see the incremental development and clarification of a regime-specific test.

As to the fault element, by contrast, the initial problem lies on the normative level itself – the potential discrepancy between the textual standard of knowledge and the commentary’s reference to intent. Read the rest of this entry…

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Arms Exports to Saudi Arabia in the High Court: what is a “serious violation of international humanitarian law”?

Published on April 3, 2017        Author: 

As readers will be aware, the UK High Court is presently considering a high-profile case challenging UK arms exports to Saudi Arabia. Arguments in the judicial review proceedings brought by Campaign Against Arms Trade were heard in February and judgment is awaited.

Although brought under English law, the case potentially implicates various international law questions. This post focuses on the interpretation of the expression “serious violation of international humanitarian law” (“IHL”) which the government appears to be advancing in the case. By narrowing the concept to include only war crimes, its position has significant implications for the international law regulation of the arms trade in general. This post will argue that the proposed definition should be rejected.

For further information on this and other international law issues arising in the case, the claimant has posted much of the open documentation produced by both sides on its website. This post draws heavily on those documents, and on the author’s notes of the open hearings.

The Issue Before the Court

The claimant challenges the government’s decisions to continue granting licences (and not to suspend existing licences) for arms exports to Saudi Arabia. That challenge is based primarily on alleged breaches of IHL by Saudi forces involved in the ongoing armed conflict in Yemen. Criterion 2(c) of the UK statutory guidance applicable to arms exports (the “Consolidated Criteria”) prohibits granting a licence “if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law”. The claimants argue that given the evidence of previous breaches, the government should have concluded that such a clear risk existed. Read the rest of this entry…

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Hegemonic Cooperation or Succession? The United States’ Emerging ‘Abandonment’, and China’s Rising ‘Defense’, of the Global Order

Published on March 21, 2017        Author: 

Many international lawyers all over the world will doubtless have experienced a surge of surrealism over the past weeks, witnessing dramatic contrasts emerging between American and Chinese foreign policies seeking to redefine the global order – with the latter veering towards deepening strategic international cooperation around the world, and the former emphatic about the insularity of its ‘America First’ policy (read: ‘walls’ could be literal and figurative). In January 2017, Chinese President Xi Jinping gave a rousing defense of economic globalization at Davos, pointing to the inevitability and irreversibility of the global economy, where for China, “the right thing to do is to seize every opportunity, jointly meet challenges and chart the right course for economic globalization.” A month later, American President Donald Trump delivered his Address to the US Congress stridently pronouncing the country’s shift towards a “direct, robust, and meaningful engagement with the world…American leadership that is based on vital security interests…[where] partners must meet their financial obligations…[and where] America is willing to find new friends, and to forge new partnerships, where shared interests align.”  The historic first meeting this week between US Secretary of State Rex Tillerson and Chinese President Xi Jinping was the first high-level commitment towards greater joint cooperation between the United States and China, possibly suggestive of softening stances between the established hegemon and the rising world power in containing shared threats, such as North Korea’s demonstrable nuclear ambitions.

The United States’ emerging abandonment of the same postwar multilateral architecture it largely created – in favor of much thicker versions of protectionism, bilateralism, and unilateralism – is ironically taking place at a time when China is gaining confidence in rising to defend the global order and the enduring value of international institutions. It is nothing less than a sharp reversal of the “New Great Game” dynamics I observed four years ago, characterizing the United States as the “unipolar hegemon that incorporates international law justification as part of its operational code in international relations”, and China as the “rising power whose operational code in international relations remains facially deeply sovereigntist but latently appears to be shifting towards some instrumental internationalism – quite consistent with the ideological hybridity bred by ‘socialist modernization’ or what Ronald Coase [described as] ‘Chinese capitalism’.” (at p. 370).

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The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

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Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts

Published on March 10, 2017        Author: 

 

A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.

The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?

International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be ‘regularly constituted’. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established ‘under the law’.

The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court’s policy concerns than sound legal reasoning. Read the rest of this entry…

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The Constitutional Frontiers of International Economic Law

Published on March 9, 2017        Author: 

The End of Mega-Regionalism?

The future of ‘mega-regionals’, like the Trans-Pacific Partnership (TPP) or the Transatlantic Trade and Investment Partnership (TTIP), has become doubtful since President Trump took office. Through decisions, such as the withdrawal from TPP, he is putting his rhetoric to ‘Make America Great Again’ in action. Yet, the idea to put national values first is not, I argue in a recent issue of the Journal of World Investment and Trade, so different from opposition to mega-regionals elsewhere. Both the ‘new America’ and opponents to mega-regionals in Europe speak in favor of disengaging from mega-regionals and replacing them with action by the nation state. At the same time, rejecting mega-regionals will result in sticking with the existing international institutional infrastructure that is widely regarded as insufficient to effectively regulate globalization for the better.

Despite similarities in their effects, there are important differences across the Atlantic. In the European Union, opposition most vocally comes from the left, not from the right. It also does not come from an elected executive, but from large numbers of citizens and opposition parties, as well as a smaller number of Member States, or even sub-divisions of Member States – think of Wallonia. And it is couched in entirely different vocabulary: Rather than speaking the language of nationalism and protectionism, opposition in the EU invokes constitutional values and rights – namely democracy, the rule of law, and fundamental rights – which are leveraged against mega-regionals and the institutions they come with, notably investor-state dispute settlement (ISDS) and regulatory cooperation.

Increasing Involvement of Constitutional Courts

Couching opposition to mega-regionals in constitutional language has important consequences: It brings in a different set of actors, namely constitutional courts. Following earlier examples in Latin America, the 13 October 2016 ruling of the German Constitutional Court on an application for an injunction against the Canada-EU Comprehensive Economic and Trade Agreement (CETA) brought by some 120,000 individuals is likely just the first of many court rulings in which international economic law encounters its constitutional frontiers head-on. Read the rest of this entry…

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International Law in the Age of Trump

Published on February 28, 2017        Author: 

In the second month of Donald Trump’s presidency, we still know little about his foreign policy agenda. He regularly said things during the campaign that suggested a radical departure from longstanding tenets of U.S. foreign policy. And during his first month in office, he caused more than his fair share of diplomatic offense and confusion. But as the New York Times has reported, Trump’s foreign policy has already become more centrist. It’s fair to say, then, that we don’t really know what Trump will do on the international stage.

Still, there’s good reason to believe that the Trump administration will pose unprecedented challenges to international law. In this post, I’ll discuss the three principal ways in which the administration is likely to undercut the existing international legal order. My goal is simply to outline the distinct risks so that we can better appreciate them. I don’t at this point propose any solutions.

  1. Corroding Legal Norms

The first possibility is the most obvious one and has already received some attention: the United States might more readily violate substantive rules of international law or disregard accepted processes for making legally relevant decisions. International legal theorists sometimes claim that legal violations—particularly, high-profile violations by one of the most powerful countries—risk unraveling the entire enterprise of international law. For example, this is how Thomas Franck expressed his concerns about the George W. Bush administration in 2006: “When a community loses faith in law’s power to restrain and channel conduct, this perception propels the descent into anarchy.”

Even if that rhetoric is hyperbolic (and I think it is), repeat violations might corrode specific legal norms. After all, any interaction that puts a particular norm at issue communicates not only whether the norm was effective in the case at hand but also what the norm requires going forward and to what extent it reflects an operative commitment. If the United States repeatedly and blatantly violates a norm, and suffers little repercussion, it will, if nothing else, weaken that norm. In my view, this process of normative evolution is not necessarily bad. Eroded norms might be replaced by new ones that better reflect current problems or expectations. Even so, the transition could be destabilizing. And it would be undesirable if its effect is to increase the threats to global security or human lives.

To be sure, the United States has violated international law before. Reasonable people can disagree about the frequency of those violations, but they are all but certain to accelerate under the Trump administration. President Trump has made clear that he intends to put “America first.” He has also indicated that he defines America’s interests very differently than his predecessors. It’s not a stretch, then, to assume that putting America first means exploiting U.S. power to evade legal rules and processes that the United States has long accepted. Moreover, while other global actors might at times push back against the United States—while they might use international law to try to condemn or constrain it—its raw power could well frustrate these efforts. Read the rest of this entry…

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Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

Published on February 13, 2017        Author: 

The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. Read the rest of this entry…

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Trumping International Law? Implications of the 2016 US presidential election for the international legal order

Published on January 3, 2017        Author: 

Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order Read the rest of this entry…

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