magnify

Announcements: CfP Dornburg Workshop – A Review of Current Trends in Foreign Relations Law; CIL Post-Doctoral Fellowships

Published on October 14, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

1. CfP Dornburg Workshop ‘A Review of Current Trends in Foreign Relations Law’Professors Helmut Philipp Aust (Freie Universität Berlin) and Thomas Kleinlein (Friedrich Schiller University Jena) will convene a workshop on ‘Current Trends in Foreign Relations Law’ at Dornburg Castle on 9 – 10 May 2019. A keynote lecture will be given by Professor Campbell McLachlan, QC, University of Wellington. Scholars interested in presenting a paper are invited to submit an abstract by 15 November 2018. For further information please see the Call for Papers

2. 2 Year Post-Doctoral Fellowships for Academic Years 2019-21 (September 2019 – August 2021). CIL invites applications for Post-Doctoral Fellowship positions commencing in Academic Year 2019/20. We seek applications from those with expertise in international economic law or international trade law, international investment law, comparative constitutional law, and law and transnational crime. Applications are particularly sought from those with or interested in developing a research interest in the emerging trade and investment regime in the Asia-Pacific region, notably the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Regional Comprehensive Economic Partnership, or the Belt and Road initiative. For more details, see here

Print Friendly, PDF & Email
Filed under: Announcements and Events
 

The Renegotiated “NAFTA”: What Is In It for Labor Rights?

Published on October 11, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 1 October 2018, the draft text of the United States-Mexico-Canada Agreement (Draft USMCA), the North American Free Trade Agreement (NAFTA)’s successor, was published on the official website of the United States Trade Representative. The Agreement has still some way to go though, including extensive legal ‘scrubbing’ by national authorities and, most importantly, approval by the corresponding national legislatures, which is likely to give rise to intense controversies. Much of the debate surrounding the Agreement so far has revolved around its labor implications, with US Trade Representative Robert Lighthizer stating that the renegotiations’ objective was, among others, “to better serve the interests of our workers”.

Against this backdrop, this post takes a look at the Draft USMCA’s labor rights dimension. It analyzes the Draft USMCA’s Labor Chapter and also reviews certain other chapters that are relevant from a labor rights perspective. The main argument is that, while the Draft USMCA entails some interesting legal innovations, the opportunity to address the main structural problems of US trade agreements to date in terms oflabor rights has largely been missed.

What is new in Draft USMCA’s Labor Chapter?

When the NAFTA was adopted in 1993, one of its novelties was the accompanying labor side agreement, which is still in force. At its core, it required parties to enforce their own domestic labor law, set up a Commission for Labor Cooperation, and established a complaint mechanism for third parties. It also allowed, in certain cases, for state-to-state arbitral dispute settlement with possibilities to impose limited fines as a last resort measure. The fate of NAFTA’s labor side agreement, which the Draft USMCA, as it stands, does not refer to, remains unclear.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Ukrainian Eurobonds and Russia’s Compliance with International Law: Matters Suitable for Summary Judgment in the English Courts?

Published on October 9, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In mid-September the Court of Appeal of England and Wales handed down its judgment in Ukraine v The Law Debenture Trust Corporation P.L.C. (‘Ukraine v Law Debenture’), in which it decided Ukraine’s appeal against an order for summary judgment for the payment by Ukraine of just over USD 3 billion. The application for summary judgment followed Ukraine’s decision to stop making payments under notes it issued in 2013, which are held exclusively by Russia. Law Debenture Trust Corporation plc (‘Law Debenture’), a trustee acting at the direction of Russia, made the application on the basis of the trust deed by which the notes were constituted, which is governed by English law and which empowers the Russian Ministry of Finance to direct Law Debenture to take enforcement proceedings against Ukraine. The domestic nature of the claim notwithstanding, Ukraine argued, inter alia, that Russia violated international law and that this provided grounds to refuse payment under the notes. It is on the Court of Appeal’s approach to these arguments that this post focuses.

Ukraine’s arguments and international law

It is in relation to two of Ukraine’s arguments – a defence of duress; and entitlement to refuse payment on the basis that it was taking a countermeasure against Russia – that Russia’s compliance with international law was called into question. The significance of Russia’s compliance with international law to the latter argument is clear. The relevance of international law to the former argument resulted from Ukraine’s claim that the issuance of notes ‘was procured by unlawful and illegitimate threats made, and pressure exerted, by Russia, such as to vitiate the consent of Ukraine…’ (Ukraine v Law Debenture para 17). More specifically, Ukraine alleged that Russia made threats which violated, inter alia, the prohibition on the threat of force and relied also on the imposition of and threat of allegedly unlawful restrictive trade measures as further evidence of duress (ibid para 166).

According to Blair J, neither the defence of duress nor the countermeasure-based argument could be considered on their merits, since the foreign act of state doctrine renders them both non-justiciable. ‘Ukraine’s case to the contrary has no real prospect of success’ (see here, paras 295, 308 and 365). While the Court of Appeal also dismissed Ukraine’s countermeasure-based argument, it did so for a different reason: the absence of a domestic legal basis which permits or requires an English court to ‘examin[e] it or pronounc[e] upon [its] merits’ (ibid para 189). In relation to the defence of duress, however, which has a domestic legal basis and to which, in the court’s view, Russia’s compliance with international law is relevant, the court held Ukraine to have ‘a good arguable case’ that the foreign act of state doctrine is inapplicable (Ukraine v Law Debenture, para 181). Read the rest of this entry…

Print Friendly, PDF & Email
 

Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic

Published on October 8, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On Friday 30 September 2018, Palestine introduced an Application before the ICJ against the United States of America for violation of the Vienna Convention on Diplomatic Relations (VCDR), on account of the transfer of the US embassy from Tel Aviv to Jerusalem. This is yet another judicial episode of David vs Goliath, like the Military and Paramilitary Activities case (Nicaragua v. US) or the South China Seaarbitration (Philippines v. China) were. But this time the David seems even more fragile, since the Goliath disputes the statehood of Palestine and consequently the many rights attached to it – among them, recognition and respect of sovereign equality in the first place.

The seisin of the ICJ has taken international lawyers aback: the reactions went from enthusiastic excitement to sheer incredulity or scepticism. This is not surprising: the case, whether it is decided on the merits or not, has the potential of becoming one of the great cases of international law, those which will be studied for decades by international law students, which will give guidance on highly debated issues, like statehood and erga omnes obligations. It is not every day that the Court is offered such an occasion.

Now, of course, it is certain that the US will challenge the Court’s jurisdiction. The only question is whether they will formally introduce preliminary objections or opt for non-appearance (like China or Russia have lately done). Non-appearance having rarely served the cause of the recalcitrant State, the US would be well advised not to follow that path; all the more if their case on jurisdiction is as strong as Marko Milanovic considers it to be in his post of 30 Sept. 2018. Non-appearance is generally an epidermal reaction by a super-power to legal challenges against its policy. The US’ infuriated announcement of withdrawal from the Optional Protocol to the VCDR, made on 3 Oct 2018, denotes this attitude. But it has no effect on Palestinian proceedings, which were introduced before the denunciation could become effective. 

One may wonder instead why the United States have not made this move earlier. After all, Palestine did warn them, through a verbal note of 4 July 2018, of the dispute on the VCDR. And on the same day, Palestine deposited with the Secretary General a declaration recognizing the jurisdiction of the Court under the Optional Protocol (both texts are available as annexes to Palestine’s Application). Maybe no one in Washington considered that Palestine’s notifications should be taken seriously. Be that as it may, the Application was made on time and the consensual basis of jurisdiction will be difficult to challenge. Read the rest of this entry…

Print Friendly, PDF & Email
 

An Exam Question on Diplomatic and Consular Law

Published on October 7, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Kemal, a journalist and a national of the state of Azovia, is living in the state of Tiberia. One day he goes to the Azovian consulate in Kostantiniyye, a major Tiberian city, in order to obtain a divorce certificate, which he needs to marry his current fiancee. Kemal never emerges from the consulate. A few days later, Tiberian authorities publicly claim that Kemal was murdered by Azovian agents while he was in the consulate. The Azovian government denies these allegations. Assuming that the facts asserted by Tiberia are true, answer the following questions (in doing so, bear in mind that Azovia and Tiberia are both parties to the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations; Tiberia is additionally a party to the International Covenant on Civil and Political Rights, which Azovia is not):

(1) Is Azovia responsible for an internationally wrongful act or acts, and if so, which one?

(2) If Tiberia had obtained reliable intelligence that Kemal was about to be murdered in the Azovian consulate in Kostantiniyye, would it have been (i) obliged to or (ii) permitted under international law to forcibly enter the premises of the consulate in order to save Kemal’s life?

(3) Would your answer to question (2) be any different if Kemal was murdered/about to be murdered in the Azovian embassy to Tiberia, rather than in its consulate?

Print Friendly, PDF & Email
 

Announcements: CfA Yearbook of International Disaster Law; Role and Contributions of the ILC to the Development of International Law; CfP Conference on The Theory and Philosophy of Customary International Law and its Interpretation

Published on October 7, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email
1. Call for Abstracts – Yearbook of International Disaster Law (Brill/Nijhoff). The Yearbook of International Disaster Law aims to foster the interest of academics and practitioners on legal and institutional issues relevant to natural, technological and human-made disasters. The YIDL is a double-blind peer review journal published by Brill/Nijhoff. For its inaugural issue (vol. 1, 2018) the Yearbook welcome submissions of abstracts for papers addressing topics pertaining to any issue of international disaster law. Abstracts should be sent by 15 November 2018 to info {at} yearbookidl(.)org. Further details can be found here.
 
2. The Role and Contributions of the ILC to the Development of International Law Symposium. The FIU Law Review and Professor Charles C. Jalloh will be hosting The Role and Contributions of the ILC to the Development of International Law, a Symposium celebrating the 70th Anniversary of the International Law Commission. The International Law Commission’s past, present, and future will be assessed from the perspective of progressive development and codification of international law. Leading scholars and practitioners of international law from around the world will convene to interrogate how the foundational pillars of “progressive development” and “codification” of international law took concrete expression in the mandate and practice of the ILC. This 70th Anniversary Symposium will review the key accomplishments of the ILC over its 70 years, its distinctive features, and celebrate the Commission’s contributions to the establishment of a rule-based international legal order. 
 
3. Call for Papers – First TRICI-Law and ECTPIL Conference on The Theory and Philosophy of Customary International Law and its Interpretation. The ERC project on The Rules of Interpretation of Customary International Law (TRICI-Law project) and the ESIL Interest Group on the Theory and Philosophy of International Law have issued a call for papers for a conference on “The Theory and Philosophy of Customary International Law and Its Interpretation,” which will take place 24 – 25 May 2019, at the University of Groningen, the Netherlands. The call is available here. Applicants are advised to consult the list of potential questions/panels of the conference, with more detailed explanation of each, which can be found here. Abstracts of no more than 500 words should be submitted to trici-law {at} rug(.)nl by 15 November 2018.
Print Friendly, PDF & Email
Filed under: Announcements and Events
 

The ICJ’s Provisional Measures Order in Alleged Violations of the 1955 Treaty (Iran v United States)

Published on October 3, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The ICJ this morning issued its Order regarding Iran’s request for the indication of provisional measures in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States). This post is intended as a brief summary of the reasoning of the Court. After a short introduction, I will outline the Court’s approach to the three core elements required for an indication of provisional measures: prima facie jurisdiction, plausibility of rights and nexus with provisional measures requested, and risk of irreparable prejudice and urgency.

The facts of the case, including the hearings on the request for provisional measures, are covered in an earlier post. In brief, Iran claims that the re-introduction by the United States of sanctions against it following the latter’s withdrawal from the Joint Comprehensive Plan of Action (JCPOA) in May 2018 violates the 1955 Treaty of Amity between the two States. In its request for the indication of provisional measures, Iran sought the Court’s order that the US shall, inter alia, suspend its reintroduction of the sanctions, as well as allow transactions already licensed to be implemented.

In its Order of this morning, Iran, in part, prevailed, with the Court indicating some of the provisional measures requested by Iran. Thus, the Court required that the US ‘remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of (i) medicines and medical devices; (ii) foodstuffs and agricultural commodities; and (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation’. The Court also ordered that the US must ‘ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction’ where they relate to the goods and services noted above, and that both parties ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

It is interesting to note that the provisional measures in this case were adopted by the Court unanimously, and thus with the support of the US Judge ad hoc Charles Brower. This is, by no means, the first time a US judge has supported a Court ruling against the US, but it is nevertheless interesting (particularly from a judge ad hoc). Judge Thomas Buergenthal supported judgments of the Court against the US in a number of previous cases, including the Oil Platforms merits judgment (after Judge Schwebel had dissented from the Court’s 1996 finding of jurisdiction in that same case).

Read the rest of this entry…

Print Friendly, PDF & Email
 

The ICC Pre-Trial Chamber’s Reading of “or” in the Myanmar Jurisdiction Ruling: On the Relevance of Linguistics to Interpretation

Published on October 2, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Linguistics continues to be a blind spot for international lawyers. Despite the self-perception that lawyers work predominantly with language, an in-depth inquiry into the actual science dealing with the phenomenon of language remains, to a large extent, a desideratum. Linguistics can, however, be very helpful in understanding the intended meaning of a word or phrase, as we will try to argue in this post. A good example of its usefulness and significance is provided in the recent decision of the ICC Pre-Trial Chamber on the Prosecutor’s request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. In paras 52 ff., the Chamber had to interpret Article 7(1)(d) of the Rome Statute to establish whether the Article embodies either a single or two separate crimes, in light of the use of the word “or”. As will be be shown, the resulting interpretation of the word “or” demonstrates the usefulness of linguistic knowledge from which international law could draw in the future.

We hope that we are not seen as using a case featuring harrowing events as a mere façade for legal-intellectual exchanges. We suggest that a narrow technical approach is justified, particularly, in such important cases where so much depends on interpretation (e.g., the exact contours of jurisdiction of an international court).

Linguistics, semantics, pragmatics

International lawyers’ relationship with linguistics has been somewhat selective. In recent writing, some have used elements of corpus linguistics or discourse analysis to gain insights into international law. However, other modern aspects of studying meaning as a phenomenon in language seem to continuously escape international lawyers’ attention. For example, there is a certain tendency to refer to Wittgenstein’s Philosophical Investigations (1953) and his argument that words are defined by how they are used without putting his work in context (see e.g. recently Klabbers, International Law, Cambridge University Press 2017, p. 56). The progress that linguistics has made in the decades following the 1950s, in particular with regard to the semantics-pragmatics divide, is left aside as a consequence. Read the rest of this entry…

Print Friendly, PDF & Email