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Modern Slavery in the Global Food Market: A Litmus Test for the Proposed Business and Human Rights Treaty

Published on August 12, 2019        Author: 

A recent initiative to adopt the UN Treaty on Business and Human Rights (BHRT) is an attempt to correct the imbalance between rights and obligations of corporations in the field of human rights. While companies regularly invoke human rights to defend their interests, they lack corresponding obligations to respect and uphold such rights throughout their business operations. The examples of reported labour rights abuses in the Thai food industry supplying international and European markets test the capacity of the recent Draft BHRT to end impunity for human rights violations in global value chains.

Pineapple, Chicken, and Modern Slavery: Brought to You by Your Supermarket

In 2013, a Finnish NGO Finnwatch revealed serious human violations in the operations of Natural Fruit Co. Ltd., a pineapple processing company in Thailand. Natural Fruit supplied pineapple concentrate to Refresco — the Netherlands-based company with notable cus­tomers in Europe including some of the biggest supermarkets. The Finnwatch report alleged that the factory employed many undocumented workers, including children younger than the legal minimum age in Thailand, that the workers were paid less than the minimum wage prescribed by Thai laws, were forced to work overtime, had their passports and work permits confiscated, and were subject to discrimination, violence, and dangerous working conditions.

In 2016, 14 migrant workers from Myanmar filed a complaint to the National Human Rights Commission of Thailand (NHRC) against Thammakaset Co. Ltd., a Thai-registered chicken farm, which directly supplied one of the country’s top exporters of chicken. The workers complained of the various forms of ‘labor abuse’ including forced labour and the restriction of their freedom of movement by confiscating their passports and allowing them to leave the premises for only two hours per week and under supervision. (NHRC Examination Report no. 114/B.E. 2559, 31 August 2016, on file with the author). Read the rest of this entry…

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Announcement: ASIL International Law in Domestic Courts Annual Workshop

Published on August 11, 2019        Author: 

ASIL International Law in Domestic Courts Annual Workshop. The ASIL International Law in Domestic Courts Annual Workshop will take place on Friday, 6 December at Lewis & Clark Law School in Portland, Oregon. If you have a work-in-progress that you would like to present, please send an abstract (or more if you prefer) to interest group co-chairs Andrew Kent and Kristina Daugirdas (akent {at} law.fordham(.)edukdaugir {at} umich(.)edu) by Friday, 6 September. Five or six papers will be selected. Preference will be given to papers that focus on U.S. courts, but all proposals are welcome. Please note that those whose papers are selected will need to submit a complete draft by 15 November for circulation to the other workshop participants. Following the selection of papers, ASIL will solicit volunteers to serve as commentators.

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Inviolability and the Protest at the Bahraini Embassy

Published on August 9, 2019        Author: 

This week Channel 4 News broadcast a remarkable story about a dissident who climbed onto the roof of the Bahraini Embassy in London. The man, Moosa Mohammed, was part of a larger group protesting planned executions in Bahrain, executions which have been condemned by human rights organisations. The protest and underlying cause are rightly at the centre of the story, and the broadcast captures the confusion and drama of the night in question. Mr Mohammed is accosted on the roof by embassy staff, appears to be beaten by a man with a stick, and, in his interview with Channel 4 News, asserts that the embassy staff threatened to throw him off the roof. But the broadcast is also remarkable for it shows, on cell phone footage, the Metropolitan Police breaking open the embassy doors and entering the premises.

To say it is rare to see the police of a receiving state breaking open the doors of a foreign embassy is an understatement. As the broadcast highlights, the inviolability of diplomatic premises is established in international law. In this post, I will discuss the legality under international law of the UK’s actions. For the purposes of the legal analysis I will assume both that there was, on an objective level, a threat to the life/bodily integrity of Mr Mohammed and that the police were acting on the back of their perception of that threat. This factual position is disputed by Bahrain. First, I set out the case that the UK’s actions were unlawful on the basis of the unconditional rule in Article 22(1) of the Vienna Convention on Diplomatic Relations. Second, I suggest that the better view is that the UK’s conduct was lawful, and discuss two routes to that conclusion. Third, I discuss the Bahraini Embassy’s statement.

Read the rest of this entry…

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The Jadhav Judgment: Espionage, Carve-Outs and Customary Exceptions

Published on August 8, 2019        Author:  and

On 17 July 2019, the ICJ rendered its judgment in Jadhav. In brief, this case involved an Indian national (Mr Jadhav) who was arrested, tried, and convicted by Pakistan for espionage and terrorism offences and sentenced to death. India made repeated requests to Pakistan to allow consular access to Mr Jadhav during his period of detention, all of which were denied. Before the ICJ, India claimed that Pakistan’s conduct violated the Vienna Convention on Consular Relations (VCCR) 1963.

Freya Baetens’ post on this blog provides a useful overview of the ICJ’s judgment. Yet, an aspect of the ICJ’s decision that requires further analysis is the manner in which the Court approached the status of espionage under consular law and customary international law. The interaction between espionage and international law was relevant to this dispute to the extent that Pakistan averred before the Court that, while Article 36 VCCR grants nationals the right to access consular assistance from their home state while detained by a foreign power, states can deny access where the national in question is accused of espionage.

Article 36 VCCR does not expressly state that the right to access consular assistance can be refused where a national is accused of espionage. Nevertheless, Pakistan justified its decision to refuse consular access to Mr Jadhav on three grounds: (1) an espionage carve-out to Article 36; (2) developments in customary international law subsequent to the conclusion of the VCCR; and (3) the 2008 Agreement on Consular Access between Pakistan and India prevails over the VCCR, which allows states to deny consular access where necessary to maintain national security. While the ICJ rejected all three of Pakistan’s submissions, this post focuses specifically upon the Court’s consideration of grounds one and two. Read the rest of this entry…

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UNCITRAL and ISDS Reform: China’s Proposal

Published on August 5, 2019        Author:  and

On 19 July 2019, China submitted its proposal on investor-state dispute settlement (ISDS) reform to UNCITRAL. A Chinese version is available, though an English translation is yet to be posted. China reaffirms its commitment to ISDS as an important mechanism for resolving investor-state disputes under public international law. However, it takes note of significant criticisms of ISDS and suggests various pathways for reform including, most notably, supporting the study of a permanent appellate body. In combination with the European Union’s “open architecture” approach, where the EU has signalled that it is open to working with other states that might wish to sign onto an appellate body and/or the multilateral investment court, this means that two of the world’s three biggest economies have now signalled support for significant reform of ISDS, including the possible creation of a permanent appellate body.

China’s UNCITRAL submission

China began in the investment treaty system as an ISDS sceptic but, over the years, has become an ISDS convert. In this submission, China starts from the position that ISDS plays an important role in protecting the rights of foreign investors and promoting cross-border investment, as well as helping to build the rule of law in investment governance and avoiding economic disputes between investors and states escalating into political battles. Given this, China affirms its belief that ISDS is overall a mechanism that is worth maintaining. Given China’s growing interests as a capital exporter, particularly along the Belt and Road route, this endorsement of ISDS should not come as a surprise and is in line with the evolution of China’s treaty practice toward embracing ISDS over a full range of disputes.

Despite this general affirmation, China recognizes that there have been significant criticisms made of ISDS that need to be addressed. These include that: the current system lacks an institutionalized and reasonable error-correcting mechanism; the current system of ad hoc awards lacks stability and predictability; the professionalism and independence of arbitrators has been put into question; third party funding is affecting the balance of parties’ rights; and investment arbitration proceedings are long and costly. Of note, China also states that the phenomenon that the arbitrators and lawyers of investment arbitration are limited to a few experts deserves special attention. China states that ISDS should be more open and inclusive with increased participation of experts from developing countries. Read the rest of this entry…

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Public International Law and the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo

Published on August 1, 2019        Author: 

On 17 July, 2019, the World Health Organization (WHO)’s Director-General declared, under Article 12 of the International Health Regulations (IHR), that the Ebola outbreak in the Democratic Republic of Congo (DRC) constitutes a Public Health Emergency of International Concern (PHEIC). The declaration took place after an Emergency Committee issued its advice in the same sense.

The aftermath of the PHEIC declaration has given way to questions about what exactly its implications –legal and otherwise– are. Some of the general features of PHEICs are described elsewhere. In turn, this post provides a closer look at the underlying legal regime of the IHR, with an emphasis on provisions related to the declaration of a PHEIC. Afterwards, a brief account of the current situation in the DRC Ebola outbreak is provided. Lastly, some of the potential consequences, legal and otherwise, of a PHEIC declaration are discussed.  

The Legal Regime of PHEICs

The IHR were approved at the 58th World Health Assembly in 2005, in accordance with Article 21 of the Constitution of the WHO. This provision gives the World Health Assembly the authority to issue regulations, inter alia, in the subject of “procedures designed to prevent the international spread of disease”. Notably, the IHR do not require further ratification by states to enter into force, rather only a two-thirds majority vote in the World Health Assembly (Article 60a Constitution of the WHO). Regulations adopted under this procedure become binding for all WHO Member States, with the exception of those which explicitly “opt out”. The IHR entered into force in 2007, and are currently binding for all 194 WHO Member States and Liechtenstein. Read the rest of this entry…

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Filed under: EJIL Analysis
 

Comments on ITLOS, M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures Order (6 July 2019)

Published on July 31, 2019        Author: 

Introduction

On July 6, 2019, International Tribunal for the Law of the Sea (ITLOS) delivered its provisional measures order in the M/T “San Padre Pio” case between Switzerland and Nigeria. The summary of the case is available here. In short, the Nigerian navy intercepted and arrested the M/T “San Padre Pio,” a motor tanker flying the flag of Switzerland, while it was engaged in one of several ship-to-ship transfers of gasoil in Nigeria’s exclusive economic zone (EEZ). The Master and the three officers were detained in prison before they were released and returned to the vessel upon the provision of bail (see Order, paras. 30-41). The Tribunal prescribed that (a) Switzerland shall post a bond or other financial security; (b) Switzerland shall undertake to ensure that the Master and the three officers are available and present at the criminal proceedings in Nigeria, if the Annex VII arbitral tribunal finds Nigeria’s measures do not constitute a violation of the Convention; and (c) Nigeria shall immediately release the vessel, its cargo and the Master, and the three officers to leave the territory and maritime areas under the jurisdiction of Nigeria (Order, para. 146).

Provisional measures are designed to protect the rights of the parties pending the final decision in a dispute. The Convention provides that the measures shall be appropriate to the circumstances so as to preserve the rights of the Parties pending the final decision of the Annex VII arbitral tribunal (UNCLOS, Article 290(1)), and the order has to be prescribed only when the urgency of the situation so requires (ibid, Article 290(5)). It follows that the Tribunal shall ensure that the rights of the two parties are equally preserved and shall not prejudge the question of the jurisdiction of the Annex VII arbitral tribunal or the merits themselves.

However, this order demonstrated the Tribunal’s willingness to take a pro-active approach to provisional measures yet again. While this tendency was already pointed out when the Arctic Sunrise provisional measures order was prescribed (see Guilfoyle & Miles, p.272), the present case seems to have further expanded its reach. The rest of this Post will examine (1) whether the Tribunal’s assessment of the urgency test was consistent with Convention and previous cases; and (2) whether the Tribunal’s decision equally preserved the rights of state parties. Read the rest of this entry…

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Why Lagarde’s ECB Appointment is (Almost Certainly) Unlawful

Published on July 30, 2019        Author: 

On 2 July, after three days of infighting and political horse-trading, the European Council reached an agreement on appointments to the EU’s ‘top jobs’. To say that these have been controversial would be an understatement, not least because of the process leading to the appointments. The Council’s decision was reached behind closed doors. There was no public scrutiny of the appointees or their agenda for the Union. The European Parliament was all but ignored, as the Council defied the ‘Spitzenkandidaten’ process to appease the leaders of the Visegrad Group. Even the very liberal and pro-EU Guardian conceded that this isn’t an obvious advertisement for the project.

A lot has already been written on the controversies surrounding the four appointees, including the ongoing probe into von der Leyen’s awarding of contracts at the German’s defence ministry and the various corruption allegations against Josep Borrell, the Council’s pick for the role of High Representative for Foreign Affairs. However, Christine Lagarde – chosen to head the European Central Bank – has been largely immune from those controversies. In this post, I argue that insufficient attention has been paid to the fact that Lagarde was actually convicted of a criminal offence for her role in a major financial fraud case and that this raises serious questions regarding the legality of her appointment. Following a brief summary of Lagarde’s role in the Tapie Affair, I examine the rules governing the appointment of the ECB President under the EU Treaties. Other sources of law may be envisaged, such as general principles of EU or global administrative law. But these are beyond the purview of this post and, as will become apparent, my view is that there is sufficient ground under the EU treaties to argue that Lagarde’s criminal conviction renders her appointment invalid and thus liable to judicial review and annulment. Read the rest of this entry…

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The Colombian Constitutional Court Judgment C-252/19: A new frontier for reform in international investment law

Published on July 29, 2019        Author: 

On 6 June 2019, the Colombian Constitutional Court announced its long-awaited decision (made public 2 July 2019) regarding the constitutionality of the 2014 Colombia – France Bilateral Investment Treaty (BIT). Using an innovative line of reasoning, the Colombian Court did not only rule on whether or not this text was constitutional. It further declared the BIT to be “conditionally constitutional” [condicionalmente exequible], requiring the issue of a joint interpretative note that would clarify the meaning of several standards of treatment contained in the BIT.  

This is not the first time that a constitutional adjudicator has analyzed international investment agreements. In Europe, for instance, resistance to International Investment Agreements (IIAs), such as the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), has been framed in constitutional terms. However, there are several factors which point to the importance of this judgement not only for the two countries involved but also, more broadly, for the way multilateralism is understood.

The Court decision and the remedy of ‘conditioned constitutionality’

On 10 July 2014, France and Colombia signed a BIT in order to establish a legal framework for foreign investment. In line with updates to other investment agreements in recent years, the revised Colombia – France BIT incorporates a series of features that aim to protect the regulatory space of states. However, the treaty also contains clauses that have been criticized (see here) for not protecting the interests of a developing state such as Colombia.

After a detailed analysis of all the provisions in the BIT and the arguments for and against the declaration of constitutionality, the Court decided that the treaty was compatible with the Colombian Constitution. However, for some clauses of the BIT, it made the declaration of constitutionality conditional on the implementation of a future interpretative declaration of the two countries that would clarify the meaning of the words used to draft substantive standards of treatment.  The Court sketched its methodology in the following way: Read the rest of this entry…

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Announcements: CfS Cambridge International Law Journal; AUWCL LLM in Human Rights and Humanitarian Law

Published on July 28, 2019        Author: 

1. Call for Submissions: Cambridge International Law Journal. The Editorial Board of the Cambridge International Law Journal (CILJ) is pleased to invite submissions for its ninth volume (issues to be published in June and December 2020). The Board welcomes long articles, short articles, case notes and book reviews that engage with current themes in international law. All submissions are subject to double-blind peer review by the Journal’s Editorial Board. In addition, all long articles are sent to the Academic Review Board, which consists of distinguished international law scholars and practitioners. Submissions can be made at any time. Articles submitted by 30 September 2019 will be considered for Volume 9 Issue 1. Any articles submitted after this date will be considered for the following issues. For full submission instructions, please see here.  Submissions can be made for Volume 9 here. Alternatively, blog articles can be submitted here. Further information can be obtained from the Editors-in-Chief at editors {at} cilj.co(.)uk.

2. American University Washington College of Law LLM in in Human Rights and Humanitarian Law. The American University Washington College of Law (AUWCL) LL.M. in Human Rights and Humanitarian Law will be offering the LL.M. in residence program starting this fall. The program is designed to provide both solid doctrinal theoretical studies and practical skills. The curriculum will be focused on over 50 human rights doctrinal courses offered every year. In addition, American University Washington College of Law offers a curriculum based on experiential education that allows students to acquire hands-on experience through externships, internships and research opportunities with human rights faculty and other experts. Deadline to apply is 1 October, classes start January 2020.

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