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Fools Gold? Legitimate Expectations as Understood in Glamis Gold v USA

Published on July 29, 2009        Author: 
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The recent decision of Glamis Gold v USA constitutes a leap forward in the articulation of norms of international investment law.  Paragraphs 1 through 9 contain an admirable description of the role of ad-hoc international investment tribunals in the determination of claims, a description that is articulate, precise, accurate and well measured. Such a development is to be welcomed, and was much needed. However, in addition to this, the decision is notable in its contribution to the development of the doctrine of legitimate expectations in the context of international investment law.

The obligation on the host State to respect the legitimate expectations of the investor constitutes what has been variously referred to by tribunals as a ‘facet’, ‘component’, or ‘sub category’ of the fair and equitable treatment provision commonly found in a number of bilateral and multilateral investment treaties. This provision has been elaborated by international investment tribunals over the course of the last four decades, and, in addition to legitimate expectations, has been found to include an obligation to not act in an arbitrary manner, to afford justice and due process to foreign investors, and to act transparently.

In Glamis, the investor argued that a violation of NAFTA’s fair and equitable treatment provision (Article 1105) had been occasioned by the failure of the United States (through its competent agencies) to respect its legitimate expectations. Ultimately, the Tribunal concluded that the claim was not made out. In reaching this conclusion, it introduced two interesting developments to the debate:

(1)    an unambiguous statement that legitimate expectations can only be based on a ‘quasi-contract’; and
(2)    the suggestion that expectations can be reasonable but not legitimate.

This comment will both outline and consider these two developments. Read the rest of this entry…

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EJIL:Talk! Welcomes Tolga Yalkin as Guest Blogger

Published on July 28, 2009        Author: 
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We are happy to announce that over the next few days Tolga Yalkin will be posting on EJIL:Talk! a series of pieces dealing with aspects of international investment law. Readers will remember that, last month, Tolga posted a piece on EJIL:Talk! titled “International Investment Arbitration: Poisoned at the Root?”  (which was discussed over at Opinio Juris)

Tolga is a graduate student at the Faculty of Law, University of Oxford and is the President of Oxford Pro Bono Publico, a public interest law program of the Oxford Law Faculty. His Oxford thesis considers the international minimum standard of treatment in international investment law.

 

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Who Uses the European Court of Human Rights, and Who Wins? Evidence from New Studies

Published on July 27, 2009        Author: 
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Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent.  Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.

The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.

 Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included:  How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?

 A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage. Read the rest of this entry…

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Has North Korea Terminated the Korean Armistice Agreement?

Published on July 24, 2009        Author: 
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Seunghyun Sally Nam is 3rd Secretary for the Korean Peninsula Peace Regime Division at the Ministry of Foreign Affairs and Trade, Republic of Korea. She is writing in her personal capacity and her views do not necessarily represent those of the South Korean government.

In his recent post, Dapo Akande refers to a recent article by Gordon Chang in which Mr Chang argues that North Korea’s announcement that it is no longer bound by the 1953 Armistice Agreement means that the Korean War has resumed as a matter of law. The issue comes down to whether North Korea’s announcement that it ‘will not be bound by the armistice’ terminates the armistice or not. Gordon Chang makes his assertion based on the idea that the Korean armistice agreement is subject to termination by the announcement of either party. However, Article 62 of the Armistice Agreement states that the Armistice agreement is effective until it is expressly superseded either by mutually acceptable amendments and additions or provision in an appropriate agreement for a peaceful settlement. Article 61 also states that ‘amendments and additions to this Armistice Agreement must be mutually agreed by the Commanders of the opposing side’.

Gordon Chang mentions in his article that the U.N. Command, a signatory to the armistice, responded to North Korea’s argument by insisting that the Armistice is in force and by referring to the termination provision. However, the Korean Armistice Agreement does not have a termination provision. The two provisions which I mentioned in the above are the only provisions which regulate any ‘amendments and additions’ to the agreement. Read the rest of this entry…

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The Korean War has Resumed !! (Or so we are told)

Published on July 22, 2009        Author: 
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Readers may wonder how they missed such a momentous event as the resumption of the Korean War. Don’t go scurrying to the TV or start clicking on those news sites just yet! There has been no use of force on the Korean Penninsula. However, it has been claimed that, as a matter of law,the Korean War has resumed. The argument was made in the Wall Street Journal, earlier this month, by Gordon Chang, an American  lawyer who writes on Chinese and Korean issues. Chang’s argument is that North Korea’s announcement on 27 May this year that it will no longer be bound by the 1953 Armistice Agreement which ended the Korean War (1950-53) means that the armistice is ended and that “North Korea . . . has resumed the Korean War.”

He makes this argument in order to provide legal justification for the US to circumvent UN Security Council Resolution 1874 (adopted after North Korea’s nuclear test in May) and to take a more robust approach to inspecting North Korean vessels. Chang’s argument is a dangerous one since if it were correct, it would not only justify the acts suggested by Mr Chang but would justify a broader use of force against North Korea.  In some ways, the argument is reminiscent of the arguments used to justify the legality of the 2003 Iraq War. There has been a breach of an agreement and so a prior war is on again! The argument was wrong then (when applied to breach of a Security Council resolution) and one is wrong now (when applied to a declaration of termination of an armistice). Read the rest of this entry…

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Investment Treaties and EU law

Published on July 21, 2009        Author: 
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Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London.

In two parallel decisions of March of this year (Case C-249/06 Commission v Sweden and Case C-205/06 Commission v Austria) the European Court of Justice ruled that Sweden and Austria are in breach of their EC Treaty obligations by maintaining bilateral investment treaties with third countries which may interfere with the EU’s powers to restrict capital movements.  This is the Court’s first venture into the booming international investment law field.  It should be seen in its broader setting. The Treaty of Lisbon purports to extend the scope of the EU’s common commercial policy to matters of “foreign direct investment”.  Perhaps in anticipation of this significant expansion of Community competence, the Commission is becoming active in this area.  It considers that bilateral investment treaties between Member States and third countries are incompatible with Community law, in so far as they contain a clause on the free transfer of payments connected with an investment.  Such a clause, whilst in principle compatible with the free movement of capital between the Community and third countries, could create problems were the Community to introduce restrictions pursuant to Articles 57(2), 59 and 60(1) of the EC Treaty.  There is as yet no relevant legislation under any of these Treaty provisions, but the Commission is concerned that the future exercise of Community competence could be hindered.

The Commission therefore brought proceedings against Sweden and Austria, referring to a series of investment treaties which they have concluded.  Those treaties come within the scope of Article 307 EC, pursuant to which (a) rights and obligations arising from agreements, concluded before accession, between Member States and third countries are not affected by the EC Treaty, and (b) Member States shall take all appropriate steps to eliminate any incompatibilities with the EC Treaty.  Sweden and Austria were alleged not to have removed the incompatibility between their investment treaties and EC law.  What the Commission would like to see is a so-called Regional Economic Integration Organisations clause in these agreements: a clause which allows and safeguards EC measures. Read the rest of this entry…

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Command Responsibility at the ICC and ICTY: In Two Minds on the Mental Element?

Published on July 20, 2009        Author: 
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Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). 

One of the most interesting decisions of the International Criminal Court on confirmation of charges has passed by with little comment so far. Whilst the Al-Bashir Arrest Warrant decision has received very considerable attention (for example – shameless self-promoter that I am – in the symposium in the most recent Journal of International Criminal Justice), the lesser-known  confirmation of charges decision in the case against former Congolese Vice-President Bemba (in relation to alleged crimes in the Central African Republic) raises some extremely interesting issues deserving of comment. For example, the decision (Prosecutor v Jean-Piere Bemba Gombo, decison of June 15, 2009) has interesting things to say in relation to definitions of crimes, their contextual elements, and the mental element as provided for in Article 30 of the ICC Statute. Indeed far too many matters to deal with in any meaningful way in a post of this nature.

 As such, this post will concentrate on only one aspect of the decision, command responsibility, as this is the first time this principle of liability (and I call it as such deliberately) has been the subject of significant comment by the ICC. Its decision on point is important, not only for the comments the Pre-Trial Chamber make directly on the issue, but also because it is indicative of the extent to which the ICC is looking, whilst showing considerable respect at times to the jurisprudence of the ICTY and ICTR, to create a separate regime of what might be termed ‘Rome law’. Whether this is a good idea or not, or whether we might see a problematic fragmentation of international criminal law from the multiplicity of Tribunals applying different definitions of international criminal law will be (briefly) returned to at the end. Read the rest of this entry…

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Editorial: EJIL Vol. 20:2

Published on July 16, 2009        Author: 
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Gaza – From Warfare to Lawfare.

For many years I taught a Seminar on the legal aspects of the Arab Israeli conflict at Harvard Law School. It was unlike any other of my courses or seminars. The participants, students and researchers, were more passionate and engaged than normal. As expected, there was always a group of passionate pro-Israelis (mostly but not exclusively Jewish). There was always a group of passionate pro-Arabs, or, at times it felt, anti-Israelis (mostly but, of course, not exclusively Jewish) Sure, they came to learn, but mostly how to sharpen the arguments for ‘their’ side in the conflict. “Lawfare” – the continuation of warfare through other means – well describes the gestalt. There were, of course, also a few  who came to learn, understand, disentangle myth from reality, sort out the facts and, normatively, seek a modicum of truth and justice in a conflict which often seems to pit right against right, and wrong against wrong. But not once did this latter group constitute a critical mass.

Law is so Janus-like: There is the advocacy face, especially in the Anglo-American tradition (in the development of which the importance of lay juries surely played a role), which passionately advocates for one side or another under  the problematic theory that adversarial arguments will lead to truth. But there is also the dispassionate face of law which privileges the disinterested, so-far-as-possible objective and clinical examination of fact and legal argument (and please, spare your breath, I, and most readers of this Journal, are all aware of indeterminacy, the conceptual and empirical problems with the notion of objectivity etc.)  There was a tug of war between these two approaches, but the first habitually crowded out the second. Read the rest of this entry…

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The ICJ and Evolutionary Treaty Interpretation

Published on July 14, 2009        Author: 
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On Monday, the ICJ delivered its judgment in the Costa Rica v. Nicaragua case, concerning navigational and related rights on the river San Juan (Registry summary; judgment). The case itself is not terribly important in the grand scheme of things, but upon reading the judgment I came across several questions of broader import that our readers might find of interest.

But first just to say a bit about the facts of the case for the sake of greater comprehension. The river San Juan is on the border between Costa Rica and Nicaragua. The border, however, does not run along the thalweg of the river, as is usually the case with river borders, but is set by treaty to run along the Costa Rican coast. Thus, the entire river belongs to Nicaragua as sovereign. The question raised by the case is what are the navigational and related rights on the river of Costa Rica and its riparian communities, under the terms of the 1858 Treaty of Limits between Costa Rica and Nicaragua. The principal of these rights was set by Article VI of the Treaty, giving Costa Rica a perpetual right of free navigation ‘con objectos de commercio’.

There was a dispute between the parties as to the meaning of this last phrase, with Costa Rica claiming that it meant ‘for the purposes of commerce’, while Nicaragua maintained that it meant solely ‘with the articles of commerce’, i.e. with merchandise (para. 45). On this issue, the Court sided with Costa Rica (paras. 50-56), and the judgment is generally speaking more in its favor than in Nicaragua’s. The background to this dispute is at least partly one of economic self-interest: Costa Rica claimed that this phrase covered not merely trade in goods, but also trade in services, such as the transportation of tourists and passengers on the river by Costa Rican ships. Nicaragua, on the other hand, asserted that the phrase covered only the trade in goods.

This brings me to the issues of general import raised in the case. First, and most important, is the Court’s approach to treaty interpretation. In that regard the Court gave short shrift to its long-standing dicta that restrictions on state sovereignty are not to be presumed lightly (paras. 47-48), and it also made several fascinating remarks on evolutionary treaty interpretation, to which I will devote the bulk of this post.

Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court considered to have exhaustively regulated the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanated from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.

Third, there is the Court’s willingness the establish, with very little evidence, the existence of a bilateral customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court derived such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest derived not from the lack of practical significance of the very small amount of fishing involved, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.

Indeed, the Court found such a customary right even though Costa Rica never claimed, until the case came to the Court, that it had such a right in its relations with Nicaragua. The Court justified its position by saying that the paucity of evidence of custom is explained by the remoteness of the area and its small population (para. 141). Now, we all know that in some cases the Court does not apply the criteria for formation of custom in a very rigorous way (e.g. regarding the use of force in the 1986 Nicaragua case), while in others it is conversely extremely hostile to the existence of custom (e.g. in the Asylum or the North Sea Continental Shelf cases). But I don’t think that I’ve ever seen the Court establish a customary rule, even a bilateral one, in quite so off-hand a way as it did here. In that regard, I find the separate opinion of Judge Sepulveda to be more persuasive.

But now onto the juiciest part of the judgment, the Court’s approach to evolutionary treaty interpretation. (Warning and apologies in advance for any overly-theoretical rambling).

Read the rest of this entry…

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Response to Alison MacDonald’s and Dapo Akande’s comments

Published on July 14, 2009        Author: 
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We thank Alison MacDonald for her illuminating and extremely useful perspective on the developments in the approach of the British courts to adjudication based on international law. In many respects the changing attitude toward international law,  headed by the House of Lords under the unmistakable leadership of Lord Bingham, has provided an example for other national courts (NCs) to follow, starting in 2004 with the so-called Belmarsh Detainees judgment, that stunning 8-1 majority declaration that found the detention of foreign suspected terrorists incompatible with the Human Rights Act.  Such leadership is critical to change the status quo not only within a jurisdiction but also regionally and perhaps even globally (and no doubt, as MacDonald suggests, it facilitated a mutually reinforcing relationship between the House of Lords and the ECtHR).

Other useful observations of MacDonald’s that are worth highlighting include the reference to the Court of Appeal’s blend of interpretive biases as leading – as often is the case – to conceptual confusion (in this case between customary and conventional international law); the inclusion of the Divisional Court’s “bright line” rationale characterizing the division of responsibilities between domestic and international courts followed by a brief documentation of the principle’s growing impracticality and obsolescence, and the description of how NCs continue to emphasize the importance of continuity and their fealty to their traditional role even as they venture further and further into the international legal sphere. This is an excellent example of how low visibility, incremental change can achieve a great deal at relatively low political cost.

We thank Professor Akande for his thoughtful review of our main arguments presented in our recent EJIL essay. We reproduce a number of his points below and respond to each of them in turn. A fuller treatment of a number of the issues that Akande raises can be found in several of our recent publications in this area (see Benvenisti 2008, Benvenisti & Downs 2009, and Benvenisti & Downs forthcoming 2009). Read the rest of this entry…

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