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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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Trivia: International Organizations Headquartered in Non-Member States

Published on May 5, 2017        Author: 

Michael Waibel’s post of yesterday highlighted one of the significant issues that will need to be sorted out in the Brexit negotiations between the UK and the EU. Another issue, though of less significance, that will need to be resolved is the (re)location of a couple of EU agencies that currently have their headquarters in London: the European Medicines Agency (EMA) and the European Banking Authority (EBA). It has been reported that the EU, understandably, wishes to move these agencies out of London once Britain leaves the EU and apparently a number of cities are competing to have these agencies relocated to them (see here and here). However, it has also been reported that Britain would like to keep these agencies located in the UK even after Brexit.

“David Davis, Brexit secretary, does not accept that the two agencies and roughly 1,000 staff will have to move from London’s Canary Wharf, even though the EU is about to run a competition to relocate them. A UK Brexit department spokesman said: ‘No decisions have been taken about the location of the European Banking Authority or the European Medicines Agency — these will be subject to the exit negotiations.’

The government has left open the possibility of keeping part of some EU agencies, at least in the short term, but the idea of the UK hosting key institutions after Brexit is unacceptable in Brussels.”

While the idea that EU institutions may remain based or even headquartered in the UK after the UK remains in the EU might, at first sight, seem unrealistic, it should be remembered that Geneva was the “European headquarters” for many decades when Switzerland was not a member of the United Nations. Switzerland only joined the UN in 2002, over 50 years after the UN was formed and had based its major European office there.

From time to time I have posed trivia questions on the blog, but usually related to international tribunals. This time I have a question that relates to international organizations.

My question is this: Which international organizations have their headquarters or main offices located in a non-member state?

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The Brexit Bill and the Law of Treaties

Published on May 4, 2017        Author: 

As has been widely reported in the media (e.g. The Guardian, the BBC), the House of Lords reached two main legal conclusions in its March 2017 report on Brexit and the EU budget:

  1. Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments, unless a withdrawal agreement is concluded which resolves this issue.(para. 135).
  2. The jurisdiction of the CJEU over the UK would also come to an end when the EU Treaties ceased to have effect. Outstanding payments could not, therefore, be enforced against the UK in the CJEU. (para. 133).

The UK government appears to have adopted a similar position on the Brexit bill as the House of Lords. The German newspaper Frankfurter Allgemeine Zeitung published an account of a ‘disastrous Brexit dinner’ at the end of April 2017 between UK Prime Minister Theresa May and Commission President Jean-Claude Juncker in which PM May reportedly argued that the UK does not owe anything to the EU upon its departure. The fact that this dinner conversation was leaked led to strong criticism, particularly in the UK as the campaign for the general election in June is currently underway (see for example here and here).

On 3 May 2017, the UK’s Brexit Secretary David Davis in a TV interview emphasized that he had not seen any official figure of the EU’s demands, and left open room for compromise:

[The UK] have said we will meet our international obligations,  but there will be our international obligations including assets and liabilities and there will be the ones that are correct in law, not just the ones the Commission want.

However, he indicated that the UK would not pay €100 billion upon leaving the EU.

The Commission’s draft negotiating directives for Article 50 negotiations with the UK, published later on the same day, emphasize the need for a ‘single financial settlement’ of the UK’s financial obligations as a member ‘in full’ – referring to it as a ‘settling of accounts’, rather than ‘punishment’. In February, the EU Commission claimed that the UK owes the EU around €60 billion as a result of its EU membership since 1973 Read the rest of this entry…

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Achieving Justice Through Restorative Means in Colombia: New Developments in Implementing the Peace Deal

Published on May 3, 2017        Author: 

On 4 April 2017, the Colombian Congress passed amendments to the Constitution creating the ‘Integral System of Truth, Justice, Reparation and Non-repetition’ (‘El Sistema law). This law is part of the fast-track package used to implement the peace deal signed between the government of President Juan Manuel Santos and the Revolutionary Armed Forces of Colombia (FARC) guerrillas on 24 November 2016. The new El Sistema law brings the implementation of the deal one step closer to reality as it creates a unique transitional justice mechanism oriented towards truth and reparations to victims. Yet the law’s limited reach and lack of popular support for the deal may stall further progress.

The Legitimacy Question

The document signed in November 2016 is the second version of the peace deal, after Colombian voters rejected by a narrow margin the first draft in the referendum of 2 October 2016. This result was largely unexpected. There are many factors that explain the failure of the first peace deal in the national plebiscite. The first is the strong cult of personality and influence of the former President Álvaro Uribe, who actively campaigned against signing a peace treaty with guerillas by appealing to concerns of different groups of population. Bad weather conditions on the polling day, coupled with the lack of infrastructure in many parts of the country, also effectively prevented many people from travelling to polling stations. Finally, little information and time was allotted to voters to study the deal prior to the referendum.

The ‘no’ result created serious challenges for the government, which wished to press ahead with the deal. Over the course of several weeks following its initial rejection, the government of President Santos introduced amendments tackling some of the concerns of the ‘no’ campaign. For example, the new deal provides for a more limited role of international judges within the newly created Special Jurisdiction for Peace (SJP) and guarantees special treatment for the army. These changes were limited, however, as the negotiators balanced conflicting interests of different stakeholders – ‘yes’ and ‘no’ campaigns, FARC, and the civil society. Read the rest of this entry…

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Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

Published on May 2, 2017        Author: 

On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  Read the rest of this entry…

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The Precedent Set by the US Reprisal Against the Use of Chemical Weapons in Syria

Published on May 1, 2017        Author: 

In his recent post on the United States’ missile strike against a Syrian airbase, on 6 April 2017, Marko Milanovic focused primarily on the unlawfulness of that action (here). While I agree with that view, in this post, I wish to focus on the nature of the precedent which the US reprisal has set. Moreover, I argue that this instance of use of a forcible countermeasure by a permanent member of the UN Security Council (UNSC) should serve to refocus attention on a dysfunctional UNSC.

Three remarks at the outset: (a) This post concerns only “forcible countermeasures” or “reprisals”; (b) I characterise the US missile strikes as a reprisal against Syria’s use of chemical weapons. Although other characterisations have been proffered (for instance, humanitarian intervention or providing assistance in a counter-insurgency), the US administration has framed its actions primarily in terms of a forcible response to the use of chemical weapons (see below); and (c) I rely on the assumption, tendered by the US but disputed by Russia, that Syria was responsible for the chemical attack.

The Legal Framework

A useful starting point for this discussion are the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001, which have been said to present “a combination of codification and progressive development” (Harris, Cases and Materials on International Law, p. 422). Article 49(1) of the Draft Articles states that “An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…” Thus, while the Draft Articles envisage the lawfulness of countermeasures in certain circumstances, it is important to clarify briefly: (1) which countermeasures are envisaged; and (2) which party may undertake them. Read the rest of this entry…

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