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Is International Investment Law moving the ball forward on IHRL obligations for business enterprises?

Published on May 15, 2017        Author: 

The question of whether businesses are subjects of international law in the absence of express treaty provisions to that effect, and thus can have IHRL obligations, receives mixed answers from legal scholars. Rights granted to businesses under international investment law and under human rights law, and obligations imposed on them under some environmental protection treaties (e.g. the International Convention on Civil Liability for Oil Pollution Damage) show that businesses can be right or duty bearers under international law. The UNGPs also recognise that businesses have a responsibility to respect human rights and remedy violations, but since they are non-binding, they do not introduce a legally enforceable obligation. Since 2014, discussions for a global treaty regulating business impact on human rights have been taking place at the UN level. There is yet little clarity on the form (regional, sectoral, global) and content of such a treaty. Among the key disagreements as to the content of the treaty is whether it should introduce direct human rights obligations for businesses under international law. Some argue that imposing direct IHRL obligations on businesses would not add much to the already existing IHRL framework that requires states to already protect against human rights abuses by business, and that it should not be a “substitute for the states’ duties to fulfil their human rights obligations”. Others argue that effective legal protection requires legal responsibilities of businesses to respect human rights to be recognised in an internationally binding instrument.

While the debate on the BHR treaty is likely to continue for a while longer, some recent developments in international investment law (IIL) seem to be moving the ball forward, albeit slowly, on IHRL obligations for businesses. IIL has been viewed by some of its critics as a force undermining IHRL and this is rightly so in some circumstances. But IIL can also act as a conduit to improve IHRL protection. I will discuss here some of the progress made in this area by the ICSID award in Urbaser v Argentina and some “next generation” investment agreements, most notably, the Morocco-Nigeria BIT and the Indian Model BIT.

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Announcements: CfP Hague Yearbook of International Law; Sussex Centre for Human Rights Research Vacancy; Helsinki Summer Seminar on International Law; Dispute Resolution in the Law of the Sea & International Watercourses; The Future of International Courts; Gender and the Law of the Sea Conference; Sustainable Development Goals Workshop Series

Published on May 14, 2017        Author: 

1. The Hague Yearbook of International Law (HYIL) – Call for Papers. Deadline: 30 June 2017. HYIL welcomes submissions of original articles – written in English or French – on any topic of public or private international law. Prospective authors should consult the HYIL house style. Submissions should be made by email at: hagueyearbook {at} gmail(.)com.

2. Sussex Centre for Human Rights Research Visiting Research Fellow in Human Rights Law. The Sussex Centre for Human Rights Research invites applications for the award of Visiting Research Fellow in Human Rights Law for the 2017-2018 academic year. Applications are open to human rights law scholars who wish to spend time at Sussex Law School, attached to the Sussex Centre for Human Rights Research. This ‘visiting’ status is normally offered to members of faculty at another institution, either in the UK or abroad, those working in the public or private sectors, and/or self-employed research consultants. Appointments can be made for periods of one to three terms (Autumn 2017, Spring 2018 and/or Summer 2018). Applications for the 2017-2018 academic year are due no later than Monday 31 July 2017. Further details including the application process can be found on the Centre’s webpage.

3. Helsinki Summer Seminar on International Law. The 30th Helsinki Summer Seminar on International Law, organized by the Erik Castrén Institute of International Law and Human Rights will discuss the Ideal of the International – Principles, Backlash and Resistance. The seminar will take place from 21 – 25 August 2017 in Helsinki, Finland. Registration is now open, and will be open until 31 May 2017. For more information see here. Read the rest of this entry…

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Some Thoughts on the Jadhav Case: Jurisdiction, Merits, and the Effect of a Presidential Communication

Published on May 12, 2017        Author: 

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach? Read the rest of this entry…

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Non-UN Financial Sanctions against Central Banks and Heads of State: in breach of international immunity law?

Published on May 12, 2017        Author: 

Conventional Wisdom Challenged?

Recent years have seen a wide range of non-UN financial sanctions being adopted against States and their instrumentalities, including central banks, as well as against high-level State officials. Prominent examples include the EU and US sanctions against the central banks of Syria and Iran, and the asset freezes against the serving Presidents of Zimbabwe and Syria. In spite of the EU’s firm assertion that its ‘restrictive measures’ “are fully compliant with obligations under international law”, one might be inclined, intuitively, to regard such sanctions as a prima facie breach of international immunity rules (whether or not they qualify as (third-party?) countermeasures is a different story altogether – one which the present post will not touch upon). Thus, given the lack of a general exemption in respect of activities de jure imperii, Castellarin argues that the EU’s financial sanctions against central banks are contrary to State immunity law – a position which is also subscribed to by Thouvenin and Dupont. Others have arrived at the same conclusion in respect of asset freezes targeting Heads of State (see e.g. Pillitu). When discussing the matter with fellow scholars, it seems that the applicability of, and incompatibility with, immunity rules is often taken for granted.

Yet, is this conventional wisdom (if that is what it is) justified? It is quite remarkable to see how, on the one hand, the EU goes to some lengths to insert tailor-made exemptions to asset freezes in order to enable payments to or from diplomatic or consular posts (or exceptions to travel bans to allow officials to participate in international conferences) – even if the practice seems far from consistent –, while at the same time seeing no problems in the imposition of financial sanctions on Syria’s central bank and Head of State. Equally remarkable Read the rest of this entry…

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Modifying the ICSID Convention under the Law of Treaties

Published on May 11, 2017        Author: 

Prospects for the institutional reform of investor-State dispute settlement (‘ISDS’) include superimposing an appellate mechanism onto the existing arbitration framework and, in the alternative, replacing that framework with a self-standing international court. While the latter option constitutes a more radical departure from the status quo, the former raises legal questions concerning the modification and potential breach of existing ISDS treaties. In particular, the ISDS model found in recent EU treaty texts (EU-Canada CETA, EU-Vietnam FTA, and draft Transatlantic Trade and Investment Partnership) raises the question of whether ICSID Members may establish an appellate mechanism inter se. This question’s importance extends beyond the EU model, as it concerns the broader feasibility of any appellate mechanism with multilateral aspirations. The authors consider that such modification is permitted by Article 41(1)(b) of the Vienna Convention on the Law of Treaties (‘VCLT’), under which Contracting States may agree to treaty modification inter se if:

the modification in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

Whereas the chapeau concerns an express textual prohibition, the respective conditions in sub-clauses (i) and (ii) encompass prohibitions which may be implied in the relationship betwee the modified provision and other aspects of the treaty. The three conditions must be satisfied cumulatively. Read the rest of this entry…

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The US and the Paris Agreement: In or Out and at What Cost?

Published on May 10, 2017        Author: 

Ever since President Donald Trump won the US elections, climate pundits have been playing the ‘will they, won’t they’ game in relation to US withdrawal from the hard-won and widely accepted 2015 Paris Agreement. The political need of the hour, it appears, is to keep the US in, and while that is certainly a desirable goal, it is time to ask, ‘at what cost’?

The US decision on whether it will withdraw from the Paris Agreement is imminent, but in advance of this decision President Trump has begun the process of dismantling Obama-era domestic regulations designed to address US greenhouse gas emissions. In the circumstances, even if the US decides to remain in the Paris Agreement, it would need to either lower the ambition of its nationally determined contribution (NDC), or be ready to fall short of it. This is at the heart of the current controversy animating the climate world – can a state downgrade its NDC under the terms of the Paris Agreement? American legal advisors in an understandable bid to keep the US in the Paris Agreement, are arguing that it can. I would like to argue that a different interpretation, one more in keeping with the object, purpose and spirit of the Paris Agreement, is possible, and even desirable.

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Chechnya’s Anti-Gay Purge: Crimes Against Humanity

Published on May 9, 2017        Author: 

Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.

Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).

Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts

The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces. Read the rest of this entry…

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Nigeria and Morocco Move Towards a “New Generation” of Bilateral Investment Treaties

Published on May 8, 2017        Author: 

Introduction

On 3 December 2016, the Governments of Morocco and Nigeria signed a bilateral investment treaty (BIT) that deserves close scrutiny. The treaty is an important attempt by two developing countries to move toward a new generation of BITs fully aligned with the evolution of international law. Indeed, it contains several largely innovative provisions susceptible to address the criticism raised in the last few years against investment treaties.

From popularity to hostility

Investment treaties, and especially BITs, were popular in the 1990s and 2000s. Their number grew quite spectacularly as did the participation of developing countries. In the last few years, however, BITs have been increasingly perceived by States as inconvenient for several reasons, including unbalanced content, restrictions on regulatory powers, and inadequacies of investment arbitration.

Dissatisfaction with traditional BITs has generated four main types of reaction: (a) reluctance to ratify BITs. Since 2012, only 25 BITs have entered into force (see here); (b) conclusion of facilitation agreements, which radically downgrade the substantive protection of foreign investment and do not provide for arbitration (see, eg, Treaty between Brazil and Mozambique); (c) termination of BITs and adoption of investment legislation (see South Africa Protection of Investment Act, 2015); and (d) upgrading of BITs with a view to striking a better balance between the private and public interests at stake. The BIT concluded – but not in force yet – between Morocco and Nigeria is a fine example of the last typology. Read the rest of this entry…

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Announcements: Sixth Annual Junior Faculty Forum for International Law; Annual Conference on WTO Law; CfP Law in transition; Venice Academy of Human Rights; BIICL Event Private Security and Human Rights; Silent Leges Inter Arma? Conference; Workshop on Refugee Rights; New additions to the UN Audiovisual Library of International Law; CfA – Assistant on MOOC in International Investment Law; Disaster Risk Reduction and International Law Symposium; International Law Weekend Extended Deadline

Published on May 7, 2017        Author: 

1. Sixth Annual Junior Faculty Forum for International Law: University of Nottingham, May 8, 9 and 10, 2017. Over coming days, Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and JHH Weiler (NYU) will convene the Sixth Annual Junior Faculty Forum for International Law at the University of Nottingham.

2. Annual Conference on WTO Law. Registration is now open for the Annual Conference on WTO Law, a two-day conference jointly organised by Georgetown Law and the Graduate Institute, Geneva. It has its origins in the partnership created in the year 2000 between University Professor John H. Jackson of Georgetown, and Professor Sir Francis Jacobs, KCMG, QC, a Trustee of BIICL, and has a longstanding affiliation with the Journal of International Economic Law (JIEL), published by the Oxford University Press. The Annual Conference on WTO Law pursues cutting-edge issues of interest to academics and practitioners alike. The 2017 Conference will be held in Geneva on 9-10 June 2017. The programme can be found here.

3. Call for Papers: Law in Transition – Interacting Legal Orders and Changing Actors. The conference ‘Law in transition – Interacting legal orders and changing actors’ arranged by the INTRAlaw (INternational and TRAnsnational tendencies in LAW) Research Centre will take place on 28 and 29 September 2017 in Aarhus. Proposals should be submitted by  1 June 2017.  The underlying idea of the conference is the fact that sovereign states are no longer the only actors in charge of establishing, implementing and enforcing legal norms. To an increasing extent, legal norms are established as a result of activities in international and supranational organizations, transnational corporations and through collaboration between public law and private law entities at national, supranational and international levels. The aim of the conference is to shed light on the impact of these new tendencies on legal regulatory mechanisms, on the role of the traditional legal actors, and on the subsequent challenges for legal research.

4. Venice Academy of Human Rights. The Venice Academy of Human Rights will take place from 3-12 July 2017 on the topic “Economic, Social, and Cultural Rights as an Answer to Rising Inequalities”.  The faculty includes a distinguished opening lecture by Branko Milanović, a general course by Olivier De Schutter as well as lectures and discussion sessions with Wilfried Altzinger, Andreas Føllesdal, Dzidek Kędzia, Miloon Kothari, Manfred Nowak, Kate Pickett and Heisoo Shin. The Venice Academy of Human Rights 2016, in co-operation with PluriCourts – Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order, discusses the prospects for economic and social justice against the background of rising inequalities. The course is aimed at academics, practitioners, PhD/JSD and master students. A selected number of participants will have the opportunity to present their own ‘work-in-progress’ to faculty members and peers. Please see the call for applications and the detailed programme for more information. Read the rest of this entry…

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 “Vulnerability” versus “Plausibility”: Righting or Wronging the Regime of Provisional Measures? Reflections on ICJ, Ukraine v. Russian Federation, Order of 19 April 2017

Published on May 5, 2017        Author: 

The ICJ order of 19 April 2017 in the case Application of the international convention for the suppression of the financing of terrorism and the international convention on the elimination of all forms of racial discrimination (Ukraine v. Russian Federation) seeks to safeguard the interests of ethnic minorities in Crimea, and to protect the victims of armed conflict in the eastern regions of Ukraine.

As Iryna Marchuk reported on this blog, the ICJ indicated provisional measures only on the basis of the CERD but not on the basis of ICSFT. The Court notably obliged the Russian Federation to refrain from constraining the representative body of the Crimean Tartars and to ensure the availability of education in Ukrainian language in Crimea (para. 102). The Court also “reminds” both parties of the Minsk Agreement on the Donetsk and Luhansk regions, and “expects” them to work towards its full implementation (para. 104).

Has the Court hereby, once again (and maybe contre gré), acted as a protector of human rights and minorities more than as the quintessential inter-state dispute settlement body? And does this tell us anything about the relative importance of individual rights over inter-state obligations in the web of international law? The two buzz words “plausibility of (state) rights” versus “human vulnerability”, juxtaposed by Judge Cançado Trindade in his separate opinion (esp. in paras 36 et seq) even insinuates a possible conflict between two paradigms. This blog explores the dualism of the states’ international legal status and individual international law-based rights, and the opportunities and risks of the “humanisation” of international law, manifest in these proceedings. Read the rest of this entry…

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