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Procedural Deference at Strasbourg: A Trend Calling for a New Admissibility Criterion?

Published on January 3, 2020        Author: 
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This blogpost argues that including an additional admissibility criterion in the European Convention on Human Rights (the Convention) for cases that were carefully dealt with at the domestic level is worthy of serious consideration, if it corresponds to a desirable understanding of the European Court of Human Rights’ (the Court) subsidiarity vis-à-vis the States. In view of the Court’s practice discussed hereinafter, a formal inadmissibility-rule appears preferable over judicial ‘ad-hocery’.

The relevant practice relates to the Court’s ‘procedural turn’: the Court increasingly defers to State authorities on grounds of their diligent decision-making. I argue that the Court does so not only by granting a wide ‘procedural margin of appreciation’, but also by outrightly declaring applications inadmissible. Let me illustrate this with a Danish case (which I further discuss below) concerning an applicant who had obtained a residence permit as an unaccompanied minor and later received an expulsion decision due to his criminal record. The Court, declaring the complaint inadmissible, observed: ‘the domestic courts … carefully balanced the competing interests, took into account the criteria set out in the Court’s case-law and explicitly assessed … Denmark’s international obligations’ (Mohammad, § 35). The Court thus endorsed the domestic courts’ proportionality assessment due to their procedural diligence, instead of and abstaining from engaging itself in any weighing of the applicant’s rights against Denmark’s public order interests.

Although this inadmissibility-practice comes close to full deference on procedural grounds, it has not gained much attention. Neither has a proposal from the Council of Europe’s Steering Committee for Human Rights (CDDH) that suggested a new admissibility criterion corresponding to this practice, but was ultimately discarded.

The case-law

Estimating the prevalence of relevant inadmissibility decisions is laborious due to the number of decisions and their varying language. A number of relevant cases were brought against Denmark under Article 8 by applicants threatened with expulsion. Mohammad, mentioned above, is a good example. Read the rest of this entry…

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Most Read Posts in 2019

Published on January 2, 2020        Author: 
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Happy New Year to our readers! We wish you a wonderful 2020 and thank you for reading the blog in 2019. Below is a list of the 20 posts that received the most views in 2019. An interesting observation is that most of these posts relate to developments in international tribunals: the International Court of Justice; the International Criminal Court, the European Court of Human Rights, and also the International Tribunal for the Law of the Sea and the Human Rights Committee. Some of these post focus on specific cases (eg, Chagos and Gambia v Myanmar at the ICJ, Bashir at the ICC, the Burqa Ban cases at the ECtHR/ HRC, Detention of Three Ukranian Naval Vessels at ITLOS), while others focus on broader institutional issues at these courts. The list highlights the attention that was given to the brilliant series of posts by our Contributing Editor, Douglas Guilfoyle, on the problems faced by the ICC, with no less than three of those posts making the top 20 most read posts. From several conversations with key court watchers and officials, I had the sense that those posts were highly influential in crystallising the sense that something needs to be done about what seemed to be impending crisis of confidence with regard to the Court. Google Analytics confirms that the breadth of influence in terms of numbers of readers. 

We would like to thank all those who contributed posts in 2019! Read the rest of this entry…

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Happy New Year!

Published on January 1, 2020        Author:  and
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The Editorial Team of EJIL, EJIL: Talk! and EJIL Live wishes our readers and authors a happy and fruitful new year.

 

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The Bougainville Independence Referendum and the ‘Duty to Consult’

Published on December 31, 2019        Author: 
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Earlier this month, the Bougainville island region of Papua New Guinea (PNG), announced that almost 98% of Bougainvilleans voting in the recent independence referendum had voted in favour of leaving PNG. The referendum is a key element of the 2001 Bougainville Peace Agreement (BPA), which, following a ten-year armed conflict, provided for special autonomy and a vote on independence to be held within 10-15 years. The result, however, is non-binding, and there have been suggestions that PNG may not be supportive of Bougainville’s secession. What then, are the legal rights of the Bougainvilleans and the obligations of PNG?

The legal framework of the referendum

The legal framework for the referendum includes the BPA – signed by the PNG government and Bougainville leaders – the PNG Constitution, which incorporates the BPA into PNG domestic law, and wider international law. The BPA and the PNG Constitution provide that the referendum was to be held once the conditions of weapons disposal and ‘good governance’ were met. Good governance is to be determined taking into account internationally accepted benchmarks including “democracy and opportunities for participation by Bougainvilleans, transparency, and accountability, as well as respect for human rights and the rule of law”. The PNG and Bougainville governments are to “consult over the results of the Referendum”, the outcome of which is “subject to ratification (final decision-making authority)” of the PNG Parliament.

Suggestions that the referendum result could be overlooked by PNG on the basis that Bougainville had not met the conditions of weapons disposal and/or good governance should be dismissed; both the BPA and PNG Constitution are clear that these conditions relate to the scheduling of the referendum and not (the implementation of) the outcome. Of course, such factors may be considered by the parties during the post-referendum political process, but they are not an argument that the process itself need not have taken place. Read the rest of this entry…

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Filed under: Self-Determination
 

How a Commercial Bond Dispute in the UK Supreme Court Invokes International Law

Published on December 30, 2019        Author: 
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While the heads of state for Ukraine, Russia, France and Germany met in Paris on December 9 to discuss terms of peace, across the English Channel in London the UK Supreme Court heard arguments concerning Russia’s suit for repayment on a US$3 billion loan to the government of Ukraine. The deal was made in December 2013 shortly after then President Viktor Yanukovich pulled out of an association agreement with the EU, and months before Russia annexed Crimea and invaded Eastern Ukraine. When the principal and final interest installment came due in December 2015, Ukraine refused to make payment.

The Law Debenture Trust Corporation p.l.c. v. Ukraine is a matter of English law because the notes, issued in the form of Eurobonds tradeable on the Irish stock exchange, were constituted by a trust deed negotiated by the parties to be governed by English law, with English courts having exclusive jurisdiction. Law Debenture is trustee of the notes, whose sole subscriber is the Russian Federation. But beyond being just another commercial bond dispute, this case is a study in how international law is woven into the fabric of national laws. The court’s ruling may have significant consequences in reaffirming faith in the status of public international law, sending a message to all nations seeking the recognition and benefits of a liberal rules-based order.

Of Ukraine’s myriad defenses to the claim, the one which survived summary judgment at the appellate level was the English common law defense of duress. As the Court of Appeal points out at 159, “English law provides that a contract made as a result of illegitimate pressure will not be enforceable.” In this case, Ukraine alleges that Russia applied illegitimate economic and political pressure to Ukraine in 2013, including threats of use of force, to deter the administration from signing an association agreement with the European Union and compel Ukraine to accept Russian financial support instead. Russia argues that Ukraine cannot make out its defense because it has no domestic foothold, and because doing so would require investigation into Russia’s dealings on an international plane, something the English court should not endeavor. Read the rest of this entry…

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From Protection to Governance of Foreign Investment: Vulnerability Theory as a Paradigm Shift in International Investment Law

Published on December 27, 2019        Author:  and
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Introduction

The international investment law (IIL) regime is experiencing a series of paradigm shifts in light of ongoing backlash against its alleged lack of interest in public concerns. Increasingly, ‘external’ stakeholders such as NGOs, locals or indigenous peoples adversely affected by the activities of a foreign investor (or the excessive protection and incentives extended to a foreign investor by the host state) are therefore given a voice in arbitral disputes and the public debates surrounding them. While foreign investors virtually never have any international obligations pursuant to international investment agreements (IIAs), there is already a significant shift towards carve-outs, policy exceptions, and provisions safeguarding the regulatory powers of states against the (excessive) limitations imposed upon them by arbitral interpretations that disproportionately favor foreign investors. A plethora of discussions have touched upon the shape of such extra-legal (or extra-economic) considerations – such as human rights, environment, and sustainable development – that might come into play in order to transform IIL into a social justice regime, responsive and reflexive of the injustices suffered by all stakeholders (Baetens, 2013; Linarelli et al., 2018; Arcuri and Montanaro, 2018). Yet, no reform proposal has realistically advocated for a raison d’être shift in IIL.

This contribution seeks to add to the existing strand of scholarship by doing precisely that, via the application of Martha Fineman’s ‘vulnerability theory’ to the IIL context (Fineman, 2008; 2017). Specifically, it elaborates on the theory’s potential for solving some of the long-standing conundrums in IIL, such as its selective protection of certain subjects of law (foreign investors), its formalistic approach to equality embodied in the ‘sameness of treatment’ principle, and its unhelpful designation of interested ‘groups’. Read the rest of this entry…

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State-Empowered Actors in the European Court of Human Rights – State Sovereignty and Council of Europe Authority

Published on December 24, 2019        Author: 
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Human rights conventions constitute a particular category of international law in respect of which individuals, exceptionally, are empowered to act because of their status as rights holders. Nowhere is this more evident than in regional bodies, such as the Council of Europe, which are founded on human rights conventions the ratification of which is a necessary criterion for membership. For the Council of Europe this convention is the European Convention on Human Rights. It is also mandatory for members States of the Council of Europe to accept the right of individuals aggrieved that their rights as contained in the ECHR have been violated to petition the European Court of Human Rights (ECtHR) for redress. Decisions of the ECtHR regarding applications are binding on the member State concerned and generally followed by other member States. The centrality of the individual as an applicant before the ECtHR is evidenced by the fact that the vast majority of the ECtHR’s case load consists of such applications. But individuals are not the only actors which participate in the interpretation of human rights. Non-state actors, in particular state-empowered actors, in the language of Sivakumaran, are increasingly relevant to making and shaping international law including its interpretation, application and development.

This blog examines the development of human rights interpretation by the ECtHR from a specific point of view: to what extent do instruments relevant to the rights contained in the ECHR, but adopted in Council of Europe institutions which consist of members appointed by the member States that are independent of those states and who do not represent them, establish evidence of agreement among the states? Read the rest of this entry…

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The Scorecard of the USMCA Protocol of Amendment

Published on December 23, 2019        Author:  and
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The U.S. House of Representatives approved December 19 the United States-Mexico-Canada Agreement (USMCA) by an overwhelming margin of 385-41. The Senate is expected to do the same in mid-January. As everyone knows by now, USMCA is a revision and replacement for the 25-year-old North American Free Trade Agreement (NAFTA), a regional trade agreement that has generated over $1.3 billion in annual goods and services trade among the three nations. USMCA mostly follows NAFTA but makes significant changes or additions inter aliain automotive rules of origin, investor-state dispute settlement, intellectual property protection, digital trade, “sunset” provisions and protection of labor rights and the environment.

Whether USMCA overall is better or worse overall than the original NAFTA will not be fully clear until USMCA has been in force for some time, and different stakeholders (e.g., automotive producers versus labor unions, the United States v. Mexico) may vary in their assessments. What is perhaps most significant for the three NAFTA Parties and their stakeholders is that the USMCA assures that duty-free, quota-free trade within North America will continue for at least 16 years, more than long enough to outlast the Trump Administration. However, tighter automotive rules of origin and other regional content requirements may adversely affect industrial production, especially in the vehicle sector. Other changes affecting trade in goods are not highly significant, and agricultural trade is largely unaffected except for a modest opening for the United States of the Canadian milk solids market (about 3.6% of demand is promised for U.S. exports). Investor-state dispute settlement is reduced in scope with regard to U.S.-Mexico investment and eliminated entirely for U.S.-Canada investment disputes (Mexico and Canada remain part of the Transpacific Partnership Agreement (TPP), which included ISDS).

The USMCA would not have been approved by the House without a series of significant modifications. These changes were negotiated between the Trump Administration’s U.S. Trade Representative Robert Lighthizer, House leadership in the persons of Speaker Nancy Pelosi and Ways and Means Committee Chairman Richard Neal and, in the early weeks of December, Mexican Undersecretary for Foreign Affairs Jesus Seade. The USMCA Protocol of Amendment signed December 10 is the focus of this post. Read the rest of this entry…

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Announcements: CfP Colloquium on International Investment Law & State Capitalism; Emile Noël Fellowship Program; CfS Melbourne Journal of International Law

Published on December 22, 2019        Author: 
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1. Call for Papers – ESIL supported Colloquium on ‘International Investment Law & State Capitalism’. The Athens Public International Law Center (Athens PIL) of the National and Kapodistrian University of Athens School of Law is hosting a Colloquium on ‘International Investment Law & State Capitalism’, which will take place on 15 and 16 October 2020 in Athens, Greece, and is jointly organized by Athens PIL, the Tilburg Law and Economics Center (TILEC) at Tilburg University, and Hamad Bin Khalifa University (HBKU) College of Law. Abstracts must not exceed 800 words and must be submitted by email to agourg {at} law.uoa(.)gr; gdimitropoulos {at} hbku.edu(.)qa; and P.Delimatsis {at} uvt(.)nl. The full call for papers, including potential topics, can be found here

2. Emile Noël Fellowship Program. The Jean Monnet Center at NYU School of Law is currently accepting applications for its Emile Noël Fellowship Program  for AY 2020/21. Limited number of fellowships are available. Deadline is 15 January 2020.  For further information, she here

3. Call for Submissions: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 21(1). The deadline for submissions is 31 January 2020. MJIL is a peer-reviewed academic journal based at the University of Melbourne and publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au. For more information, please visit here.

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COP25 Negotiations Fail: Can Climate Change Litigation, Adjudication, and/or Arbitration Compel States to Act Faster to Implement Climate Obligations?

Published on December 19, 2019        Author: 
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The failure of the 25th negotiating year by the UN Framework Convention on Climate Change’s (UNFCCC) Conference of Parties (COP25) held this month in Madrid to achieve the necessary global decisions to implement Article 6 of the Paris Agreement on the creation of an international carbon trading system points to some glaring structural – and not just political – deficits in the international system.  While accusations have been heaped on all sides against countries such as Brazil, India, and China (who held out for carryovers of around 4 billion of unsold certified emission reductions or CERS, which represent existing carbon credits under the Kyoto Protocol’s Clean Development Mechanism), Australia (who reportedly argued that carryover of its CERS would show it meets its carbon targets), and the United States (who reportedly argued for language under Article 8 of the Paris Agreement that would insulate the United States from any obligation to compensate for any climate -related loss and damage), no indications have been given on how to break the negotiations impasse well before the COP26 next year in Glasgow.  Only the European Union thus far has put forward bold policies and taken decisions to achieve climate-neutrality for its territory by 2050. This dismal outcome does lead me to doubt what the eminent environmental law scholar Professor Dan Bodansky strenuously argued back in 2016:

“From start to finish, the question of legal form or character was central to the Paris negotiations. The Paris Agreement is a treaty within the definition of the Vienna Convention on the Law of Treaties, but not every provision of the agreement creates a legal obligation. It contains a mix of mandatory and non-mandatory provisions relating to parties’ mitigation contributions, as well as to the other elements of the Durban Platform, including adaptation and finance. One cannot definitively say how much the legally binding character of the Paris Agreement matters. Making the agreement legally binding may provide a greater signal of commitment and greater assurance of com- pliance. But transparency, accountability and precision can also make a significant difference, and legal bindingness can be a double-edged sword if it leads States not to participate or to make less ambitious commitments. Thus, the issue of legal character, though important, is only one factor in assessing the significance of the Paris outcome.” (Italics added.)

Notwithstanding the tremendous global political mobilization galvanized by Greta Thunberg alongside the rise of climate change activism around the world, and the optimism that some in the environmental law community seems to place on the greater impact of transparency in the Paris Agreement to encourage State compliance (one I still shared back in 2015), this year-end 2019 I have less confidence in voluntary cooperative strategies alone. A November 2019 report led by the former Chair of the Intergovernmental Panel on Climate Change confirmed that most countries will not make their Paris Agreement targets:

“To achieve the Paris Agreement’s most ambitious goal of keeping global warming below 1.5 degree Celsius above pre-industrial levels requires reducing global greenhouse gas emissions (GHG) by 50 percent by 2030, and some of these pledges are unlikely to be achieved.

Of the 184 climate pledges, 36 were deemed sufficient (20 percent), 12 partially sufficient (6 percent), 8 partially insufficient (4 percent), and 128 insufficient (70 percent).

Because the climate pledges are voluntary, technicalities, loopholes, and conditions continue to postpone decisive global action to reduce emissions and address climate change.” (Emphasis and italics added.)

Under this reality, shouldn’t the ‘invisible college of international lawyers’ devote more efforts today towards reviving the blunt edge of climate change-based national, regional, or international litigation, adjudication, and arbitration towards reaching sufficiency of climate pledges for 70% of the world, and actual monitoring and enforcement of all climate pledges?  While some might see the proliferation of coercive legal enforcement as perhaps anathema to the deliberate design of the Paris Agreement, the last few years have witnessed a sharp rise in climate change-based domestic litigation; climate change-based petitions at human rights treaty bodies; a recent 2019 Philippine Constitutional Commission on Human Rights report concluding that the Carbon Majors (47 of the world’s biggest fossil fuel firms) could be held legally liable for violating human rights; and various opinions (see here, here, here, here, here, here, among many others) on how international arbitration could be used for climate change-based or climate change-related disputes, especially on challenging the adequacy or appropriateness of the multiple individual mitigation and adaptation policies and strategies of States and businesses and the impacts of those policies and strategies on populations.  There is clearly no shortage of international legal remedies being exhausted for climate change-related disputes, except for the most important one: getting States to act with despatch, negotiate in good faith, and to fulfill Paris Agreement targets sufficiently.  The reason often advanced is that this part of the Paris Agreement is not legally binding and thus cannot be subject of any legal enforcement anywhere.  But is it? While one can plausibly argue that the nationally determined contributions (NDCs) set by States pursuant to the Paris Agreement are not hard legal commitments (as rightly shown by Jorge Vinuales in this blog here, here, and here), as others have argued (here, here, and here) various other procedural obligations as to transparency, reporting, and accountability are legally binding. However, the absence of explicit legal sanction or punitive consequences in the text of the Paris Agreement treaty arguably operates to reinforce, embolden, and empower ‘holdouts’ in the COP negotiations who can take extreme positions to delay reaching decisions to implement the Paris Agreement.

At the very least, I would argue that, even within the hard and soft letter of the Paris Agreement, is interwoven an independent (customary) international legal obligation to negotiate in good faith that could be the substantive basis for incurring international or State responsibility. This obligation does NOT pertain to the specific realization of climate targets, but rather, refers to the good faith obligation of States to ensure that negotiations to implement the Paris Agreement remain meaningful.  This would squarely question whether the holdout positions on maintaining carryover credits under the Kyoto Protocol’s Clean Development Mechanism would still keep negotiations meaningful to realize the international carbon trading system under Article 6 of the Paris Agreement.  In this post, I evaluate the Paris Agreement text (especially Article 6) alongside the objects and purposes of the Agreement and various embedded obligations within the Agreement, against the International Court of Justice’s recent test for determining the existence of an international legal obligation to negotiate as articulated in its 2018 Judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile):

“…for there to be an obligation to negotiate on the basis of an agreement, the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence.” (2018 Judgment, para. 91. Italics added.)

Read the rest of this entry…

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