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Is the International Law Commission Elevating Subsequent Agreements and Subsequent Practice?

Published on August 30, 2018        Author: 
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At its most recent (70th) session, the International Law Commission adopted two important sets of “restatements” on two important sources of international law on second reading, namely the Draft Conclusions on the Identification of Customary International Law and the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (see the ILC’s 2018 Report (UN Doc A/73/10) here). This post concerns the second of these restatements, subsequent agreements and subsequent practice (see Chapter IV of the Report).  In particular, this post expresses a concern about an apparent, almost surreptitious, attempt by the Commission to elevate subsequent agreements and subsequent practice as tools of interpretation to the same level as the more objective tools outlined in article 31(1) of the Vienna Convention of the Law of Treaties. The concern may seem like a storm in a cup – and I hope that is the case.  However,  there is a real possibility – a possibility which could risk the stability of treaties – that the ordinary meaning of the words of a treaty, in their context and in light of the object and purpose of the treaty could give way to ever-changing moods of States expressed through subsequent agreements and subsequent practice. If states don’t like the terms of the treaties they have adopted, they should amend it through the means provided for in the treaty or in the customary rules on amendments of treaties. Amendment through interpretation, a real likelihood if subsequent agreements and subsequent practice were elevated to an independent status of equal value – perhaps some day even greater – to ordinary meaning, in context and in light of the object and purpose, would be a dangerous course.  It is hoped that this implicit suggestion in the work of the Commission is not taken up the practice of courts in the application of article 31.

I should begin by two caveats.  First, this post, like the draft conclusions themselves, concerns only subsequent agreements and subsequent practice in relation to treaty interpretation.  Thus, what is said here does not affect the role that subsequent agreements or subsequent practice might have, say for modification of treaties in general. Second, there is, admittedly, nothing in the draft conclusions themselves that can be interpreted as the elevation of subsequent agreements and subsequent practice.  The (attempted) elevation comes in the commentaries to a number of provisions in the set of draft conclusions.  I should note, in connection with the last-mentioned caveat, that the commentaries themselves seem to have been elevated to a higher position than before – not quite on par with the draft conclusions but certainly approaching that level.  While in the past, it has been understood that the draft texts adopted by the Commission were to be read with commentaries, during the 70thsession, the Commission inserted language as the first paragraph in the general commentary of both second reading topics to emphasise this point, which had not been emphasised in this manner before. Read the rest of this entry…

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Global Pact for the Environment: Defragging international law?

Published on August 29, 2018        Author: 
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A ‘defrag’ computer program that consolidates fragmented files on a hard drive holds metaphorical attraction for international lawyers. Our encounters with international law often seem to be specific to particular legal regimes, which have a functional orientation and professional sensibility that, in the words of the International Law Commission, may be self-contained. International environmental law and human rights, for example, were developed at different times and are supported by different international and domestic institutions. Now, the United Nations is considering a proposal that promises to integrate various parts of international law, thereby improving its performance: the Global Pact for the Environment.

The draft preliminary text for the Global Pact for the Environment entrenches a right to an ecologically sound environment (Article 1), sets out a duty of states and other actors to take care of the environment (Article 2) and requires parties to integrate the requirements of environmental protection into their planning and implementation, especially to fight against climate change, and to help protect the ocean and maintain biodiversity (Article 3). These and other clauses provide a framework that follows the existing international human rights covenants – on civil and political rights and on economic, social and cultural rights – to promote a ‘third generation’ of fundamental rights. On 10 May 2018, a resolution adopted by the United Nations General Assembly established an ad hoc open-ended working group to analyse possible gaps in international environmental law and, if deemed necessary, to consider the scope, parameters, and feasibility of an international instrument (which could include, but is not limited to, a legally binding agreement along the lines of the Global Pact). Two co-chairs were appointed the following month. An accompanying White Paper outlines the Pact’s antecedents, which include the Rio Declaration on Environment and Development. In this short post, I consider three ways in which the Pact impacts upon the interaction between regimes and ‘defragments’ international law. Read the rest of this entry…

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Transitional Justice Without Truth?

Published on August 27, 2018        Author: 
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During his election campaign, Colombia’s new president Iván Duque announced that he would seek amendments to the peace agreement with the FARC-EP of 24 November 2016 and the ensuing unique Colombian system of Transitional Justice (TJ) (Sistema Integral de Verdad, Justicia, Reparación y No Repetición, SIVJRNR– see here for details of that system). Now, the parliamentary group of his party (Centro Democrático, CD) in the Colombian Congress has followed his words with deeds and launched a proposal for a constitutional amendment (Transitional Article 5A) (of which the government, however, was, according to its spokesperson, not aware). Under this amendment, all the TJ-organs, in particular the Truth Commission (Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición) and the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), will be denied access to confidential information affecting national security. This proposed amendment follows another change that the CD  has proposed to the procedural regime of the Special Jurisdiciton for Peace, shortly after the presidential election (still in the former Congress). Under that change, surrender of military personnel to the Special Jurisdiction for Peace would be voluntary and there would be a separate jurisdiction for the military. However, the constitutionality of this rule is very doubtful because it would undermine the constitutional TJ framework. From this perspective, it is consistent that the new government is now preparing an amendment of the Constitution itself, by denying the TJ organs access to information.

Of course, the new proposal amounts to a frontal attack on any TJ-system, because its central component is the establishment of (historical) truth and, based on this, a cultural memory. Such a cultural memory is important for any transitional society in its entirety, both for victims and perpetrators, as both groups are part of this society. But how can a proposal that practically hinders the establishment of truth and memory be reconciled with victims’ rights that the new government has repeatedly called for, in particular the right to truth? How can historical truth be established without access to the information in question? Read the rest of this entry…

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Announcements: Conference on Knowledge Production and International Law; UN Audiovisual Library of International Law

Published on August 26, 2018        Author: 
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1. Geneva Graduate Institute of International and Development Studies: Conference on Knowledge Production and International Law. The International Law Departement of the Geneva Graduate Institute of International and Development Studies is organizing a conference on “Knowledge Production and International Law” to be held in Geneva on Friday 7th and Saturday 8th September 2018. The conference aims to analyze the actors by whom, or the mechanisms, channels and politics though which, knowledge is produced, disseminated, performed and reproduced in international law. It is an invitation to initiate a discussion on knowledge production and international law through four thematic panels: 1) International law as a field of knowledge; 2) Ignorance and the limits of knowledge in international law; 3) Determinants of international law scholarship; and, 4) Emotions and international law. Detailed descriptions of the panels can be found here. Attendance is open to the public. Registration for the conference is free and should be done via email to knowledge-production-il@graduateinstitute.ch by Friday 31 August.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Mr. Georg Nolte on “The International Law Commission and Community Interests” and Dr. Nilüfer Oral on “Climate Change and the Protection of the Ocean”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

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Can Intergovernmental Commerce in Human Organs be Legal?

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

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

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

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Young Philippine Lawyers Arrested Today for “Obstruction of Justice” in the Philippines’ Drug War

Published on August 16, 2018        Author: 
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I’ve been up since 3 am here in Notre Dame making urgent calls and preparing petitions. I was contacted by my law partner in Manila early this morning, alerting me that three of our 16 year-family law firm’s young lawyers  – Attorney Jan Vincent Sambrano Soliven (34, and currently a law professor at the Lyceum of the Philippines College of Law), Attorney Lenie Rocel Elmido Rocha (25, who just passed the bar exam last year and was a former National Jessup Champion for the Philippines and competed in the International Rounds in Washington DC), and Attorney Romulo Bernard Bustamante Alarkon (33, and who just passed the bar exam this year) – were suddenly arrested earlier today in Makati City, Metro Manila, while they were monitoring the police’s implementation of a search warrant on the premises of a famous arts Makati City bar that the police have dubbed a “drug den”. They identified themselves as legal counsels for the owner – my Manila law firm was engaged as counsel by the owner (foreign national) of the Times bar, after the Makati City police made the raid last Saturday. Because two cabinets were locked and could not be opened, the police got a search warrant to inspect the cabinets.  Our client asked the firm to send lawyers to monitor and watch the search of those two cabinets to safeguard against any planting of evidence or theft.  Standard procedure.  The police opened the cabinets, took their inventory, and then turned to my three young lawyers and said they had no authority to be there. My lawyers respectfully said they were legal counsels of the owner and were just sent by the firm to take notes and photograph the opening of the cabinets.  But instead, one of the police team members thought they were being “arrogant” and immediately arrested them on a charge of “obstruction of justice” (punishable with minimum 6 months imprisonment, maximum 6 years imprisonment).  The police did not explain why, and how, the passive and quiet acts of note-taking and phone camera photography of cabinets being opened amounted to an “obstruction of justice” under the Philippines’ Presidential Decree No. 1829:

“(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal’s offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.”

To our surprise, for four hours, we were unable to reach our young lawyers when they were taken because they were not permitted to make any calls to counsel or their families, and neither were they informed of what the charge was against them but instead they were intimidated and verbally harassed.  When I and the law firm in Manila finally got to speak with them, they were already being hauled for medical inquest, and then being moved to the Makati City Police Station to spend the night in jail.  Because we could not find them and did not learn of the arrest until hours afterwards, we were unable to file a petition for a writ of habeas corpus because the Makati City regional trial courts are closed.  As of this writing, it is already 8.30 pm in the evening, and my three young lawyers are detained in the Makati City Police Station.

While my family’s law firm on the ground will certainly file all necessary petitions in Philippine courts and elsewhere, I narrate the circumstances above because it is a firsthand account witnessing to a demonstrated potential for abuse in the Philippines’ anti-drug operations.  The Philippines is a long-time party to the International Covenant on Civil and Political Rights, and has repeatedly upheld the ICCPR as part of the law of the land under Article II, Section 2, of the 1987 Philippine Constitution.  Article 9 of the ICCPR make it clear that arbitrary arrest and detention are anathema to every human being’s civil and political rights:

“Article 9.

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Much has been written about the thousands of extrajudicial killings cases in the Philippines – and, as we did in 2005 when then Chief Justice Puno convened all of us in academia, the bar, and the courts to come up with the new human rights remedies on the writs of amparo and habeas data – many of us today are quietly working pro bono to pursue domestic remedies and justice before Philippine courts for victims’ families.  But this is the first instance I have ever heard of since the start of the Philippines’ drug war – one where the government has repeatedly defended the “necessity”, “proportionality”, and “legality” of its operations publicly and internationally – that the police have started going after the lawyers directly, using “obstruction of justice” as their trump card. As of this writing, the police have not shown any report or evidence of what amounts to “obstruction of justice” from the note-taking and banal photography that those three young lawyers did.

It is now nearly 9 pm in Manila (and 9 am in Notre Dame), and as I and my colleagues race to file the necessary court petitions and alert the Integrated Bar of the Philippines (I have just contacted President Abdiel Dan Fajardo), I cannot help but wonder what Asian Society of International Law President and Presidential Legal Adviser on Human Rights Secretary Harry Roque – my former law professor at UP Law and beloved coach when my team won the Jean Pictet International Humanitarian Law competition in 2004 at Mejannes-le-Clap, France – will say to this course of events on the ground.  Attorneys Soliven, Rocha, and Alarkon are young, idealistic, honorable, and patriotic lawyers – and none of them ever imagined that *this* is now what the “rule of law” looks like in the Philippines.  I’ve witnessed and borne my share of detention and law enforcement abuse in another country, so tonight I’m telling them to clutch hard inside, and stand by due process and the rule of law.  We are working hard to get them out as soon as possible.

*Update as of 18 August 2018:  The young lawyers were released late Friday evening and are in recovery. Thankful that this matter has moved to the judicial process and out of being incommunicado in illegal detention.  No further statements from us here following the sub juice rule for pending cases.  The Integrated Bar of the Philippines, Free Legal Assistance Group (FLAG) Lawyers, many other organizations and volunteer lawyers have now taken up this matter at many levels.

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The turn to managed interdependence: a glimpse into the future of international economic law?

Published on August 14, 2018        Author: 
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Beyond the unpredictability injected into the international order in the wake of policies adopted by the current US administration, a trend seems to be taking shape: the management of interdependence. The belief whereby increased global integration and connectivity would bring peace, stability and prosperity has never been as challenged as presently, when links between states are occasionally “weaponized” in the pursuit of goals that increasingly blur the economic, political and strategic divides.

This scenario pre-dates the Trump period. It was described in an influential 2016 publication by the European Council on Foreign Relations as one where interdependence “has turned into a currency of power, as countries try to exploit the asymmetries in their relations”. In reaction, states are reassessing their exposure to an interdependent global order, seeking to mitigate perceived vulnerabilities that might stem from connectivity and openness.

International law is likely to be transformed if this trend gains traction. A number of international rules and institutions were premised on – and, in fact, harnessed – the interdependence that marked the post-Cold War environment. This article offers insights into possible implications of managed interdependence for international economic law, an area where states are increasingly resorting to “economic statecraft” in order to advance strategic interests. As explored below in the example of investment screening regulations, some of these interests — as national security – are pursued by the management of interdependence.

The emergence of managed interdependence

The intensification of the US-China rivalry has made salient the drivers of managed interdependence. In what possibly amounts to one of the most consequential shifts in global politics, the US has decided to change its approach to China. According to the 2017 National Security Strategy, the US needs to “rethink the policies of the past two decades—policies based on the assumption that engagement with rivals and their inclusion in international institutions and global commerce would turn them into benign actors and trustworthy partners.“

In the context of the change in policy, calls are emerging for the US to manage its economic interdependence with China. In the defense establishment there seems to be a growing sentiment that it is necessary to untangle the economic links between the two countries in order to safeguard US national security. Leading China experts in the US are advocating “ways to protect ourselves against (…) Chinese activity that’s intended to exploit our openness.” And think tanks are suggesting to build “diversity and redundancy in critical supply chains” to limit China´s leverage over the global economy.

The US case with respect to China offers a compelling manifestation of the push to manage interdependence, but it is not an isolated instance. China, for its part, is rolling out its own network of interdependence, partially as a result of the lesson “that overdependence on the West in trade and economy is dangerous”, as argued by a Chinese scholar. Likewise, friends and allies of the US are taking due note of the cost President Trump is seeking to extract from interdependence in the form of trade concessions under the guise of alleged national security. While these states often have little wiggle room to counteract at present, they might be looking for options in the future, as analysts recognize. The private sector too is adjusting to managed interdependence by means of a redesign of global supply chains. Finally, it could also be argued that domestic anti-globalization pressure can induce governments to limit their economies’ exposure to interdependence.

International economic law in times of managed interdependence

Underlying these developments is the perception that, in a context of great power competition, economic policies might be enlisted in a larger set of tools aimed at advancing strategic interests. The 2017 US National Security Strategy acknowledges that this dynamic is currently at play when it states that “American prosperity and security are challenged by an economic competition playing out in a broader strategic context.“ The combination of strategic goals and economic policies is the essence of the notion of “economic statecraft”.

In many instances, economic statecraft in all its expressions is enabled by economic interdependence. Economic statecraft is often associated with the imposition of (formal or informal) economic sanctions, and with the leveraging of state clout to advance national economic interests, as the opening of foreign markets. What became more frequent at present, though, is another brand of economic statecraft, namely the deployment of economic tools to push forward strategic state interests such as access to raw materials and the acquisition of relevant technologies. The fact that the strategic rationale behind some state measures might be debatable does not take away their nature as economic statecraft. When the US decides to manage its interdependence with a NATO ally such as Turkey by crippling bilateral economic ties, this is no less an example of economic statecraft – although some could be left wondering what the strategic logic for this decision is.

The “international law of economic statecraft” differs from international economic law in critical ways. First, states often possess more discretion to act, as a number of economic statecraft measures fall under exceptions to international rules, as national security carve-outs. Second, economic statecraft decisions are inspired by a strategic rationale, which not necessarily privileges the efficient allocation of resources. Indeed, these decisions might confound the market, as when the US government vetoed the takeover of the American chip manufacturer Qualcomm by Singaporean company Broadcom.

As exceptions to rules are more frequently invoked, legal uncertainty is introduced into global economic regimes, and the rule of law is impaired. As a reaction, states are likely to opt for some sort of managed interdependence in order to ensure a degree of predictability.

One area of economic regulation where increased managed interdependence can be identified are the disciplines for investment screening. These rules allow states to scrutinize – and occasionally discourage or veto – transactions taking place in their jurisdictions.

The dissemination of foreign investment screening as management of interdependence

Developments in the investment field offer interesting insights on what international economic law might look like in a context of managed interdependence.

Increased interdependence brought about by rules that liberalized investment flows expanded the global outward stock sixfold between 1997 and 2017, from US$ 5.5 trillion to US$ 30.8 trillion, according to UNCTAD.

More recently, though, that same agency noted that, as a consequence of “concerns about national security and foreign ownership of land and natural resources (…) investment screening procedures are becoming more common”. Whereas investments tended to be by and large welcomed in the past, they are now viewed with slightly more caution.

Tellingly, national security is a concept in expansion. This affords state authorities more leeway to review investment transactions. As the OECD documented in a 2016 report, “the reference to strategically important industries and critical infrastructure is nowadays much more frequent than some six years ago when national security was defined in a much narrower sense”.

Other developments also point to an increased management of interdependence in this area. Of particular relevance is the fact that new actors are adopting investment screening legislation – most notably the European Union, where a regulation is expected to be in force in the short term. Additionally, states with established mechanisms are reinforcing the powers held by national authorities to scrutinize foreign investments, as evidenced in the reform of the Committee on Foreign Investment in the United States (CFIUS), whose bill should be signed into law soon.

The current stage of investment screening regulation also hints at possible roles for international institutions and cooperation in this area. Accordingly, the US Congress has directed the President “to urge and help allies and partners of the United States to establish processes that parallel the [CFIUS] to screen foreign investments for national security risks (…)”. For their part, trade ministers of the US, EU and Japan have agreed on the need to work on best practices to stop governments from “the systematic investment” aimed at acquiring foreign technologies.

China, in its turn, has advocated that the WTO examine, as a possible measure of investment facilitation, to “[e]ncourage the establishment of clear and consistent criteria and procedures for investment screening, appraisal and approval (…)”.

As these examples suggest, managed interdependence does not necessarily inhibit some level of internationalization. However, they also expose different views of internationalization, one pushing for the dissemination of national rules and the other for an international control over the application of these rules.

Conclusion

To be sure, interdependence has never been complete, as states have always enjoyed varying degrees of flexibility to implement international rules. What stands out today is the risk of unravelling the interdependence that has been achieved, which generated positive results despite the shortcomings that still need fixing.

Managed interdependence is not a given. It is only emerging and its dissemination depends to a certain degree on whether more states will resort to it or not.

A world of more managed interdependence would mean an unfortunate step backwards. It undercuts the rule of law, produces regime duplication and ultimately promotes the rise of competing legal orders.

While the reasons for increased resort to economic statecraft – by all actors – might be understandable in a context of global power shift, managed interdependence testifies to the incapacity to find agreements. Rather than parting ways, efforts should instead be placed on producing commonly acceptable solutions.

*The views expressed above are personal to the author and do not represent the official views of the Government of Brazil.

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

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

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

Can Germany claim immunity from jurisdiction?

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

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

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Announcements: Evolutionary Interpretation in Different International Legal Systems Conference; IMPRS-SDR Applications for PhD Proposals

Published on August 12, 2018        Author: 
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1. University of Geneva Conference: Evolutionary Interpretation in Different International Legal Systems. On 4 – 5 October 2018, the Law Faculty of the University of Geneva is hosting a conference entitled Evolutionary interpretation in different international legal systems. Evolutionary interpretation is an intriguing and fundamental concept in international law. It allows for the interpretation of treaty provisions by taking into account, emerging factual and legal situations, changes in international law, new social considerations, technological improvements or environmental concerns that did not exist at the time of the conclusion of the treaty. Whether this evolutionary reading of terms occurs by virtue of the generic nature of the terms in the treaty, the contemporary meaning of such terms, the object and purpose of the treaty or the immediate or remote context of the treaty, evolutionary interpretation allows the terms of a treaty to adapt to the passage of time. This conference aims to facilitate thematic discussions on the topic of evolutionary interpretation. These discussions will allow for a broader understanding of the approaches to evolutionary interpretation in various areas of international law, as well as a comparison of these approaches. The programme can be found here. Further information can be found on the conference’s website. Attendance is free, but registration is mandatory. To register for the conference or to ask questions, send an email before 25 September to clement.marquet {at} unige(.)ch.

2. IMPRS-SDR Applications for PhD Proposals. The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of 5 funded PhD positions at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural law. The IMPRS-SDR was established in 2009 to bring together academics and practitioners in international dispute settlement with excellent PhD candidates to examine and compare international dispute resolution from a legal and interdisciplinary perspectiveSelected PhD candidates will receive full-time research contracts of initially two years, with a possible extension. For further information please see here. The closing date for applications is 31 August 2018.

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Balancing between Trade and Public Health Concerns: The Latest Step in the Plain Packaging Saga

Published on August 8, 2018        Author:  and
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The Australian Tobacco Plain Packaging (TPP) measures raised the classic issue of balancing between competing interests. While aiming at improve public health by putting plain packaging requirements on tobacco products, Australia revived an important debate in international economic law concerning whether international obligations have become too intrusive for the State’s policy space, asphyxiating the sovereign right to protect essential interests or values.

On the one hand, Australia’s measures seem to have been encouraged by public health concerns and the Framework Convention on Tobacco Control (FCTC), which is a component of a juridical strategy that purports to construct a consensus in the international legal community on the need to fight the tobacco epidemic. As the preamble to the Convention clearly states, the parties were ‘determinedto give priority to their right to protect public health’. On the other hand, the judicial contestation of the TPP measures nevertheless showed the diversity of competing interests at stake, which made the topic a perfect example of those multifaceted litigations raised before a plurality of international courts and tribunals.

The need to determine a balance between the right of the State to legislate to protect public health and the rights of tobacco companies had appeared already in the case law of the European Court of Human Rights(ECtHR Hachette Filipacchi presse automobile et Dupuy v. France,). Investment arbitration has also been another setting for this sort of litigation, most notably after Philip Morris introduced two claims contesting that the Australian and Uruguayan legislation restricting the presentation and sale of cigarettes was in violation of its rights stemming from BITs. In both cases, these requests remained unsuccessful. The ICSID tribunal used the systemic integration principle of Article 31(3)(c) VCLT to operate a balancing test between the investment protection obligations under the BIT and the State’s right to regulate, established in customary international law, together with its corollary, the police powers doctrine (Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, award, para 290).

Ever since the introduction of the complaints in 2012, the question that remained was whether the WTO adjudicatory bodies would have interpreted trade obligations in keeping with this line of reasoning. In an earlier post on the Panel report, Margherita Melillo reflected on how the Panel used the FCTC for evidentiary purposes. This blog post continues this reflection by looking at how the Panel resolved conflicting interests of public health and trade.

Balancing in international trade law

Concerns about the treatment of tobacco control measures under international trade law date back at least to the 1990 GATT case Thailand – Restrictions on importation and internal taxes on cigarettes. While tobacco control measures have also been the subject of two recent trade disputes (i.e. Dominican Republic — Import and Sale of Cigarettesand US — Clove Cigarettes), neither of these disputes drew as much attention to these concerns as Australia – Plain Packaging. At the heart of this dispute was the sharp conflict between the trade interests of the complainants and the public health concerns of Australia. International trade law normally addresses such conflicts through a system of ‘rule and exception’, set out to strike a balance between trade and non-trade interests. However, the two agreements at issue in Australia – Plain Packaging, namely the TBT Agreementand the TRIPS Agreement, do not contain a general ‘exception clause’ equivalent to GATT Article XX. The balancing of competing interests (trade and public health) in this dispute thus took place in the context of determining the consistency, or otherwise, of the TPP measures with Article 2.2 of the TBT Agreement and Article 20 of the TRIPS Agreement.

More trade restrictive than necessary?

The complainants alleged that the TPP measures were more trade restrictive than necessary to achieve their legitimate objective, contrary to Article 2.2 of the TBT Agreement. This provision allows Members to adopt technical regulations that achieve legitimate objectives, insofar as they are not more trade restrictive than necessary to fulfil those legitimate objectives. Parties to the dispute agreed that the objective of the TPP measures, as the Panel put it, was ‘to improve public health by reducing the use of, and exposure to, tobacco products’ (para 7.232). They also accepted that such objectives are legitimate within the meaning of Article 2.2 (para 7.248). Their disagreement was over the trade restrictiveness of the measures and their contribution to the public health objective they pursue. The complainants contended that the measures were more trade restrictive than necessary and proposed four alternative measures that would have been, in their view, reasonably available and less trade-restrictive while making an equivalent contribution to the realization of the legitimate objectives.

Since the objective of the measures at issue was undisputed and such objectives fall within the illustrative list of legitimate objectives under Article 2.2, the main task of the Panel was to determine whether these measures were indeed trade-restrictive but nevertheless contributed to the legitimate objectives. Taking the evidence before it in its totality, the Panel concluded that ‘the TPP measures, in combination with other tobacco-control measures maintained by Australia […], are apt to, and do in fact, contribute to Australia’s objective of reducing the use of, and exposure to, tobacco products’ (para 7.1025). The Panel also found that ‘the TPP measures are trade restrictive, ‘insofar as, by reducing the use of tobacco products, they reduce the volume of imported tobacco products on the Australian market, and thereby have a “limiting effect” on trade’ (para 7.1255).

Having found that the TPP measures are trade-restrictive but make a significant contribution to the protection of public health, the Panel had to weigh and balance the trade and public health interests at stake to determine whether they are more trade-restrictive than necessary to achieve their public health objectives. In doing so, the Panel first considered the risk of non-fulfilment of the objectives and then the reasonable availability of alternative measures that are less trade-restrictive while making an equivalent contribution to the achievement of those objectives. On the ‘risks of non-fulfilment’, it found that ‘the public health consequences of not fulfilling [the] objective are particularly grave’ (para 7.1322). It then examined the proposed alternative measures and found that the complainants failed to demonstrate their proposed alternative measures (individually or collectively) constituted a less trade-restrictive alternative to the TPP measures with an equivalent contribution to Australia’s objective (paras 7.1362-7.1723). Against this background, the panel concluded that the TPP measures are not more trade-restrictive than necessary to achieve their legitimate objective of improving public health (para 7.1732).

Unjustifiable encumbrance?

The complainants also alleged that the TPP measures constitute special regulations that unjustifiably encumber the use of trademarks in the course of trade, contrary to Article 20 of the TRIPS Agreement. The threshold issues here were whether the measures in question constitute ‘special regulation’ and ‘encumbrance’ within the meaning of Article 20. The parties to the dispute agreed that the measures indeed constituted special regulations, but they disagreed over the precise scope of the term ‘encumbrance’. While the complainants argued that it covers all kinds of hindrances and impediments, Australia insisted that it covers only limitations on the use of trademarks. Australia was of the view that a total prohibition on the use of trademarks is outside the scope of Article 20. The Panel agreed with the complainants that it would be ‘counterintuitive’ to consider that a measure that restricts the use of a trademark would be subject to the disciplines of Article 20 while a more far-reaching measure to prohibit such use would not’ (para 7.2238). This consideration has led the Panel to conclude that ‘encumbrances arising from special requirements within the meaning of Article 20 may range from limited encumbrances, […], to more extensive encumbrances, such as a prohibition on the use of a trademark in certain situations’ (para 7.2239). This finding settles the debate over the meaning of the term ‘encumbrance’ in Article 20. While scholars such as Pires de Carvalho have argued that the degree of encumbrance is not to be taken into account for the applicability of the provision, others, most notably McGrady, have argued that a prohibition falls outside the scope of application of Article 20 because the provision deals with whether the trademark could be used and not how it may might be used. The position of Pires de Carvalho seems to have prevailed over the one of McGrady in the eyes of the Panel. On this point, it is also interesting to note that a similar discussion took place concerning what constitutes a technical regulation within the meaning of the TBT Agreement. The Appellate Body in EC – Asbestos reversed the conclusion of the Panel,stating that an absolute prohibition does not qualify as a technical regulation.

Having passed the threshold issues, the Panel then had to determine whether such an encumbrance was unjustified within the meaning of Article 20. No definition or guidance as to what constitutes ‘unjustifiable encumbrance’ exist under the TRIPS Agreement. Nor there is case law on the subject. The Panel had to appreciate the justifiability in concreto, balancing the two conflicting interests.

In the absence of an agreed upon definition or jurisprudence, the Panel interpreted what constitutes ‘unjustifiably’ encumbering the use of trademarks in light of the object and purpose of the TRIPS Agreement. Here the Panel relied mainly on Article 8.1 of the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health. Having found that these two provisions authorize WTO Members to take measures for the protection of public health, the Panel concluded that the complainants have not demonstrated that the TPP measures unjustifiably encumber within the meaning of Article 20 (para 7.2605). That is to say that although the measures at issue encumber the use of trademarks within the meaning of Article 20, the encumbrance is justified by virtue of its public health objective. This conclusion resonates with the conclusion of scholars like M. Abbott who have argued  that an interpretation of Article 20 consistent with Article 8 and the Doha Declaration would have acknowledged and given effect to the ‘right to protect public health’ in any implementing action under the TRIPS Agreement and in any dispute settlement proceeding.

In arriving at this conclusion, the Panel also considered the fact that the TPP measures are ‘in line with the emerging multilateral public health policies in the area of tobacco control as reflected in the FCTC and [its] guidelines’ (para 7.2604). The Panel was of the view that the fact FCTC (a non-WTO agreement) endorses the TPP measures reinforces their justifiability. This raises the longstanding question of whether WTO adjudicatory bodies could use non-WTO agreement as an interpretative key. Although the Appellate Body has used such instruments to interpreting WTO agreement in the past, the jurisprudence is far from settled on this matter. This is why Honduras highlighted this issue in its notification of appeal.

A parallel could be made with the Brazil – Tyrescase. Here, the Appellate Body adopted a holistic approach and stressed that, because of their nature, health protection measures had to be analyzed in the larger framework of the State policy action. Looking at the measure as a whole would allow for a clearer overview of the objectives pursued by the State to be identified, in order to facilitate a more accurate balancing. Moreover, the analysis of the effectiveness of the measure had to take a chronologically larger standpoint; the effectiveness of a public policy can in fact take time to emerge (paras 151 and 182). This holistic approach, elaborated in the framework of Article XX GATT, seems to be reiterated in the framework of Articles 20 and 8 TRIPS: the unjustifiability of the encumbrance has be examined in light of all the contextual elements that lead to the adoption of the public health measure, including the reliance on the FCTC and the customary right to regulate. Here we find a strong similarity with the balancing operated in the Philip Morris case, based on an intersystemic and holistic approach.

Conclusion

The WTO Panel’s recent report is the last step in a long saga. This saga has allowed different international courts and tribunals to test the flexibility of international obligations with regard to the State’s regulatory space in health issues. The plain packaging report confirms a general trend in WTO case law, whereby the telosof the measure serves to justify the interference within free-trade obligations. In fact, the Appellate Body had floated an ‘unspoken sympathy for well-intentioned health and safety measures’, an unspoken sympathy that is based on the axiological importance attributed to the policies at stake. This kind of ‘smell test’, as Hudec notoriously defined it, reflects Robert Alexy’s idea of weight formula, intrinsic in the balancing operation operated in different fora. The Panel has extended this technique to two areas of WTO law where its scope of application was doubtful.  

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