International economic law developments barely one month into 2017 have been nothing short of tectonic this side of the Atlantic. From US President Trump’s first executive action to withdraw the United States from the unratified Trans-Pacific Partnership; his subsequent announcement (later called mainly an option) to impose a 20% border tax on Mexican imports into the United States to finance a wall between the two countries; a declared initiative to renegotiate the North American Free Trade Agreement (NAFTA) that was signed under the administration of Republican President George Bush; unprecedented changes to the United States National Security Council removing the nation’s top military, intelligence, and security advisers to only permit regular attendance for White House chief strategist Steve Bannon and more limited attendance of the chairman of the Joint Chiefs of Staff and the Director of National Intelligence; threats of punitive tariffs against China and accusations of illegal currency manipulation; to last Friday’s latest executive order announcing a travel ban against individuals from seven predominantly Muslim states (approximately 218 million persons) and the 4-month suspension of any refugee entry, as a possible first step to a broader ban – it is becoming all too clear that barely ten days into the new presidency, the United States will not be above reversing, abandoning, disregarding, or defecting from any of the established rules and institutions of international economic law, through extraordinary actions and reversals that have scarcely any or no inter-agency vetting and consultation, and significantly, with the new president declining to divest himself from all business interests or to introduce transparency and consultation measures even as these political-security-economic policy reversals continue to be formulated with relative opacity. The Dow Jones industrial averages and NASDAQ composite index both dropped with the sudden rush to sell off US equities, and American private companies have taken to hiring crisis management and communication firms for the new age of undisclosed and sudden economic policy reversals, reviewing operations and mergers against possible charges of being “Anti-American”.
In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.
First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK. Read the rest of this entry…
France has never legislated on State immunity to the same extent as the US, UK and other countries. Instead, sovereign immunity under customary international law has been mainly governed by case law, save for two little known provisions: Article 111-1 of the civil enforcement procedures code providing for the principle of immunity of domestic and foreign public entities, and Article 153-1 of the monetary and financial code providing for the immunity of foreign central banks and monetary authorities. Even though France ratified the United Nations Convention on Jurisdictional Immunities of State and their Property of 2004 (UNCSI) with Law No. 2011-734 of June 28, 2011, contrary to Japan, Spain and Sweden, France did not incorporate the Convention into domestic law. The recent decision to incorporate only Articles 18, 19 and 21 of UNCSI on immunity from execution was rather motivated by the fact that, first, the jurisprudence of the Cour de cassation had become unpredictable and, second, the French government was embroiled in diplomatic complications with foreign States. With two Articles of Law No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and modernising economic activity of December 9, 2016, France has, on the one hand, purported to codify customary law on State immunity from execution, as reflected in UNCSI, (Article 59), a provision portrayed by its opponents as the “Putin amendment” made specifically to respond to the Russian law of 2015 which threatens to deprive foreign states of their immunity if they ignore Russia’s immunity, in particular with regard to seizures made following the aftermath of the Yukos award. On the other hand, it has enacted specific rules on execution proceedings against foreign States undertaken by so-called “vulture funds” as had been the case with the famous NML capital Ltd. v. Argentina litigation (Article 60).
This post will focus on the first of these two provisions, Article 59. Read the rest of this entry…
Trumping International Law? Implications of the 2016 US presidential election for the international legal order
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…
On 20 January 2017, Donald Trump will become the 45th President of the United States. During the campaign, he spoke often about terminating landmark international agreements concluded by the Obama administration, including the Paris Agreement on climate change, the Iran nuclear deal, the Trans-Pacific Partnership and the normalization of relations with Cuba. Predicting what might actually happen in a Trump administration is difficult, because his statements as a private citizen, candidate and president-elect have been inconsistent. Should he wish to follow through on the campaign rhetoric to take immediate action on these issues, what can the president actually do unilaterally? Decisions to terminate these agreements raise questions under both international and domestic law. The United States is bound under international law when it becomes a party to an international agreement, and also has some limited obligations upon signature. Under US constitutional law, the presidency is at its most independent and powerful in dealing with foreign relations. While that power is not unlimited, soon-to-be President Trump could arguably fulfil all of those campaign promises without violating domestic or international law.
Paris Agreement on Climate Change
On 3 September 2016, the United States ratified the Paris Agreement on climate change which entered into force on 4 November 2016. The agreement was concluded under the auspices of the United Nations Framework Convention on Climate Change (“UNFCCC”) which was ratified by the United States in 1992 and entered into force in 1994. The Paris Agreement establishes no binding financial commitments or emissions targets. The states party are bound only to formulate and publish national plans for reducing greenhouse gas emissions to hold the increase in the global average temperature to “well below” 2°C above pre-industrial levels and pursue efforts to reduce the increase to 1.5°C. The United States is the second largest emitter of greenhouse gases in the world, and its participation in the Paris Agreement was critical to bringing other states, particularly China, on board. Read the rest of this entry…
During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.
How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.
Lost amid polarization
This year was decidedly different from previous years, when polarization grew increasingly tense. Read the rest of this entry…
The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.
The Shifting Debate
The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.
Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.
This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters. Read the rest of this entry…
Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC
On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.
It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:
dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.
As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:
The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.
Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.
In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.
This is Part II of a two-part post.
What are the Consequences of the Paris Agreement’s Entering into Force?
The Paris Agreement is to enter into force on 4 November 2016, 30 days after the second of its two thresholds was passed on 5 October 2016. On that day, the emissions covered by those Parties to the Convention that ratified or accepted the Agreement amounted to 56.75% of global total emissions; crossing the 55% bar required by the agreement. (see Part I)
So, what does this mean? I would like to highlight 10 points.
First of all, the Agreement becomes international law. It is an international treaty, i.e. an international agreement concluded between states in written form and will be governed by international law (Art. 2.1 (a) Vienna Convention on the Law of Treaties – VCLT).
While 197 Parties to the UNFCCC adopted the Paris Agreement and 191 signed it so far, it is important to note that it will only bind those 74 states and the EU (as of 7 October 2016) which have expressed their consent to be bound by it through ratification, acceptance or approval. Each of these states for which the Agreement is in force will then become a “Party” to the Agreement. This means that despite the commonly used adage, it is not a universal agreement. Rather, at the time of entry into force, it captures only about 2/5 of the Parties to the Convention, with others hopefully joining over time.
According to the principle of “pacta sunt servanda”, Parties are obliged to keep the treaty and must perform it in good faith (VCLT, Article 26). Good faith suggests that Parties need to take the necessary steps to comply with the object and purpose of the treaty. Neither can Parties invoke restrictions imposed by domestic law as reason for not complying with their treaty obligations. Read the rest of this entry…
This is Part I of a two-part post.
Rapid Entry Into Force or the “Rush to Ratify”
The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU, Canada and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!
Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.
The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.
It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.
How was it possible? Read the rest of this entry…