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An International Investment Advisory Center: Beyond the WTO Model

Published on July 26, 2019        Author: 

Establishing an international investment advisory center is now a priority for many states.  UNCITRAL Working Group III has put the issue at the top of its agenda for ISDS reform.  The European Commission is considering an advisory center for its proposed Multilateral Investment Court.  The Netherlands government has commissioned a feasibility study.

Thinking about an international investment advisory center naturally starts with the Advisory Centre on WTO Law (ACWL).  Established in 2001, the ACWL is the “first true center for legal aid within the international legal system.”  It seeks to level the playing field by giving developing states the same in-house capacity that developed states enjoy.  The ACWL provides developing states with training, confidential advice on WTO law, and assistance or financial support during WTO dispute-settlement proceedings.  The center receives funding from developed and developing states, including voluntary contributions and (below-market) fees from dispute-settlement proceedings.  Two decades on, the ACWL has established itself as an integral part of the WTO dispute settlement system, playing “a crucial role in maintaining a viable and credible rules-based multilateral trading system.” 

But is the ACWL the right model for an international investment advisory center?  Unlike the WTO regime, the international investment regime is decentralized.  There is no global treaty on investment protection, no global forum for addressing all investment-related issues, and no global institution to help states avoid, manage, and resolve investment disputes efficiently and effectively.  Instead, each State—developing and developed—must devise its own approach to foreign investment and devote the human and financial resources necessary to comprehend, navigate, and develop that regime.

The decentralized nature of the international investment regime has important consequences.  States often struggle to comprehend and comply with their international investment commitments across all levels of government, making it difficult to avoid or settle investment disputes.  Many states lack significant expertise with investment arbitration, making it difficult to defend themselves effectively, or proactively shape the development of international investment law.  States’ frequent reliance on external counsel may hinder the development of in-house government legal capacity essential to establishing coherent and consistent national treaty practice. A cycle of uncertainty, inexperience, and incapacity has bred discontent with the current regime, threatening its legitimacy.  Viewed from that perspective, an international investment advisory center focused primarily on helping developing-state respondents in investment arbitration may fail to address underlying needs and broader concerns.

Broad Participation, Maximum Impact, Minimum Cost

A successful advisory center could help fill six gaps in the international investment regime: Read the rest of this entry…

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Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international human rights obligations

Published on July 25, 2019        Author: 

On the first day of July, Hong Kong celebrates Establishment Day, which commemorates the 1997 transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China. Establishment Day for Hongkongers is customarily accompanied by political protests. The widely reported 2019 protests are the direct result of a proposed amendment to the Fugitive Offenders Ordinance (‘FOO’). The proposed amendment, if passed, would open up the possibility of extradition to mainland China.  Although the proposed amendment was declared “dead” by Hong Kong’s Chief Executive, Carrie Lam, there is real possibility that, at one point or another, the bill will be reincarnated since under Hong Kong law a bill can be suspended or withdrawn and it is not clear that the declaration declaring it dead does either of these. As a result, people have kept pouring into the streets calling for Carrie Lam to step down, making the issue of continuing relevance.

One major point of contention of the proposal concerns the protection of human rights of those subject to transfer to China. NGOs such as Amnesty International and Human Rights Watch point out China’s deplorable human rights protection. While the PRC’s poor human rights track record has been documented extensively, in this contribution I wish to clarify how the amendment bill could result in a situation in which Hong Kong incurs responsibility under international human rights law – in particular article 7 ICCPR – when extraditing persons to the PRC. I do so by first discussing the proposed amendments to the FOO. Second, by explaining the international human rights standards that govern extradition and by which Hong Kong is bound (mainly the torture prohibition), I show how the proposal lacks the safeguards necessary to ensure adequate protection against torture and inhuman and degrading treatment.

Proposed amendments to the Fugitive Offenders Ordinance

The government’s justification for tabling the FOO amendment proposal lies in a brutal 2018 murder case in which a Hong Kong man killed his girlfriend while vacationing in Taiwan and fled back to Hong Kong. The Taiwanese authorities, quick to connect the dots, issued an extradition request to Hong Kong, but received no reply. The absence of action on the part Hong Kong can be explained by two alleged loopholes in the FOO: Read the rest of this entry…

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New EJIL: Live! Interview with Dr Sarah Nouwen

Published on July 24, 2019        Author: 

This episode of EJIL: Live! introduces EJIL’s new joint Editor-in-Chief, Dr Sarah Nouwen. Currently a University Senior Lecturer at the University of Cambridge and recently appointed as Professor of International Law at the European University Institute in Florence, Italy (starting September 2020), Dr Nouwen speaks with Professor Joseph Weiler about her own academic trajectory, her research interests and her approach to teaching. The conversation then moves on to a reflection on the state of research and the study of international law – its challenges, problems and promises. Finally, Dr Nouwen shares her thoughts and ideas for the future of EJIL and offers some advice for young scholars. The interview was recorded at the IE Law School in Madrid. EJIL: Live! is the official podcast of the European Journal of International Law (EJIL), one of the world’s leading international law journals. Regular episodes of EJIL: Live! are released following the publication of each quarterly issue of the Journal, and include interviews with the authors of articles appearing in that issue as well as a wide variety of news and reviews when possible. Additional episodes, EJIL: Live! Extras, are also released from time to time to address a range of topical issues. Episodes of EJIL: Live! can be accessed via the EJIL website and on this blog. Comments and reactions to EJIL: Live! episodes are welcome, and may be submitted to this blog.

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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

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New Issue of EJIL (Vol. 30 (2019) No. 2) – Now Published

Published on July 22, 2019        Author: 

The latest issue of the European Journal of International Law (Vol. 30 (2019) No. 2) is now out. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access articles in this issue are Isabel Feichtner and Surabhi Ranganathan’s International Law and Economic Exploitation in the Global Commons: Introduction and Surabhi Ranganathan’s Ocean Floor Grab: International Law and the Making of an Extractive Imaginary. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Best Practice – Writing a Peer-Review Report

Published on July 22, 2019        Author: 

The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with ‘objective’ quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in ‘peer-reviewed’ journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.

Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 per cent – oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in EJIL and I.CON undertake to peer review for our journals, an undertaking not always honoured. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.

Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as 24 weeks, after a slew of ‘gentle’ and somewhat less gentle reminders. Read the rest of this entry…

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Announcements: Military Assistance on Request in the International Legal Order Conference; BISA Working Group on Peacekeeping and Peacebuilding

Published on July 21, 2019        Author: 

1. Conference: ‘What Room for Military Assistance on Request in the International Legal Order?’ On Thursday 5 and Friday 6 December 2019, the Journal on the Use of Force and International Law (JUFIL, Routledge) and the Ghent Rolin-Jaequemyns International Law Institute (GRILI) will host an international conference focusing on ‘military assistance on request’. Having regard to recent third-State interventions in Yemen, Syria and elsewhere, the conference seeks to explore the legal framework governing such interventions, including relevant uncertainties and shortcomings as well as proposals de lege ferenda. Separate expert panels will be devoted to the ‘authority’ to invite outside intervention on the one hand, and the permissibility of third-State intervention in situations of civil war on the other hand. Confirmed panelists include inter alia Prof. Anne Orford (University of Melbourne), Prof. Eliav Lieblich (University of Tel Aviv), Prof. Gregory Fox (Wayne State University), Prof. Raphaël Van Steenberghe (Université catholique de Louvain-la-neuve), Prof. Karine Bannelier-Christakis (Université Grenoble-Alpes), Prof. Erika De Wet (University of Pretoria and University of Bonn), Prof. Alonso Gurmendi-Dunkelberg (Universidad del Pacifico), and Prof. Christian Henderson (University of Sussex). The conference programme and registration link are available here.

2. BISA Working Group on Peacekeeping and Peacebuilding. The BISA Working Group on Peacekeeping and Peacebuilding, with funding from the BISA Postgraduate Network, is organising an interdisciplinary PGR workshop entitled ‘Militarisation and the Local in Peacekeeping: Ambition, Pragmatism and Adaptability’ to be held at City, University of London on 20 September 2019. The workshop is the first of a four part series incorporating practitioners as well as academics and will explore challenges to peacekeeping through the lens of the local. Approaches to peacekeeping operations are increasingly in tension between pragmatic approaches which seek realistically achievable outcomes and ambitious approaches rooted in humanitarian commitments and human rights. We have seen increasingly complex mandates, robust and militarised missions which may negatively affect the local. Topics of interest include how best to pursue human rights and to incorporate local needs, the effect of militarisation and counter-terrorism in peacekeeping mandates, and how these challenges impact human security and building peace. Please send abstracts (of no more than 250 words) to Alexander.Gilder {at} city.ac(.)uk and ss17sw {at} leeds.ac(.)uk no later than 31 July 2019. Further information, including travel bursaries and attendance, can be found here.

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EJIL Vol. 30 (2019) No. 2: In this Issue

Published on July 20, 2019        Author: 

This issue opens with three articles that address underexplored corners of international law. The first article focuses on the topic of customs unions. Adopting a historical perspective, Michal Ovádek and Ines Willemyns identify gaps and ambiguities in the contemporary legal definition of custom unions. They then conduct a comparative analysis to examine how different custom union agreements address these ambiguities. They observe that the design and performance of these agreements is affected by concerns over state sovereignty. Finally, they draw lessons for a possible post-Brexit EU-UK agreement regarding customs.

The second article, by Miles Jackson, discusses instigation to commit wrongful acts. He argues that contrary to the common perception, international law does include a general prohibition on instigation. In accordance with this prohibition, a state that induces or incites another state to breach its international obligations may be held responsible for an internationally wrongful act. According to Jackson, the prohibition on instigation is founded on a general principle of law accepted in many domestic jurisdictions, which should be transposed to international law.

Paolo Amorosa then explores a forgotten episode in the well-studied history of the international legal struggle for women’s equality. Whereas the common narrative dates the beginning of this struggle to the aftermath of World War II, Amorosa traces its roots to the signing of the Equal Nationality Treaty and the Equal Rights Treaty at the 1933 Montevideo Conference. In so doing, he takes a step towards the re-inclusion of early feminist activists in the dominant history of international law. Read the rest of this entry…

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New Issue of EJIL (Vol. 30 (2019) No. 2) Out Next Week

Published on July 19, 2019        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler, Editor-in-Chief of EJIL. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue:

Editorial

Editorial: Editor-in-Chief Sarah M. H. Nouwen; Best Practice – Writing a Peer-Review Report; In this Issue

Articles

Michal Ovádek and Ines Willemyns, International Law of Customs Unions: Conceptual Variety, Legal Ambiguity and Diverse Practice

Miles Jackson, State Instigation in International Law: A General Principle Transposed

Paolo Amorosa, Pioneering International Women’s Rights? The US National Woman’s Party and the 1933 Montevideo Equal Rights Treaties Read the rest of this entry…

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EJIL: Editor-in-Chief Sarah M. H. Nouwen

Published on July 19, 2019        Author: 

We are very pleased to announce that, as of this issue, the EJIL family (EJIL, EJIL: Talk! and EJIL: Live!) will be led by two Editors-in-Chief. By unanimous decision of EJIL‘s Board of Management, Sarah Nouwen will join J.H.H. Weiler at the helm of EJIL. Dr Nouwen serves as Senior Lecturer at the University of Cambridge and was recently appointed as Professor of International Law at the European University Institute. She has been a member of EJIL‘s Editorial Board for several years.

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