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A Second Brexit Referendum – What Makes You Think They Will Have You Back?

Published on November 26, 2018        Author: 
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The call for a second Brexit Referendum is still alive, some say more than ever. It is probably unlikely and, even if it were to take place, there is no certainty that the Remain camp would win. But it is somehow based on the assumption that if such a referendum were held, and the Remainers would win (probably a narrow victory) and that if, as a result, the UK Parliament were to change its mind and elect to remain, that on the basis of this unilateral decision of the UK the status quo ante would be restored and British membership of the Union would continue unabated.

This is very unlikely to be the case.

First there is the legal issue regarding such a unilateral withdrawal of the Article 50 notice.

As is well known, a Preliminary Reference from Scotland will be decided this month in an expedited procedure and before a plenary forum of the ECJ, trying to clarify the legal parameters of a British change of mind whether through a referendum or otherwise.

The Reference definitely has some elements of an Affaire Bidon but I predict the ECJ will not opt for inadmissibility in this case. On the merits it is likely that it will  reject the two ‘bookend’ arguments and instead go for the centre. It is most unlikely that it will hold that once Article 50 notice has been served the process is irreversible and that the only way back, even before the deadline for formal exit arrived, is an Article 49 admission procedure. It is, in my view, equally or even more unlikely that it would hold that the UK could unilaterally withdraw its notice and that, with no more, its Membership would continue unabated. The UK drives everyone crazy for close to three years and then, oops, just as the Clock Strikes One, the Mouse is to run down as if nothing happened?

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UNCLOS, CITES and the IWC – A Tailored International Duty to Cooperate?

Published on November 26, 2018        Author: 
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In October 2018, the Standing Committee (SC) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITESconcluded that Japan had failed to comply with certain CITES provisions regarding the trade in Appendix I species (namely, sei whales). This blog post seeks to evaluate the relationship that such a conclusion could have on Japan’s duty to cooperate regarding the conservation of marine mammals (as required under Article 65 of the Law of the Sea Convention (UNCLOS)), and the duty to cooperate with non-binding resolutions made by the International Whaling Commission (IWC) – especially in light of the findings in the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Case.

The Whaling Case

In 2014, Australia took Japan to the ICJ, alleging that Japan’s Southern Ocean scientific whaling programme (JARPAII) was inconsistent with Article VIII of the ICRW. The Court concluded that JARPAII involved activities that, broadly speaking, could be scientific research but that JARPAII’s design and implementation was not ‘for purposes of scientific research’ as required by Article VIII (para. 227). In arriving at this conclusion, the Court held that Japan has a ‘duty to cooperate’ with the IWC and the Scientific Committee (para. 83). As stated by Meguro, the ICJ effectively shaped the duty to cooperate as a mechanism to bind Member States – who do not support a particular resolution – to the standards/recommendations under IWC resolutions (which, by nature, are non-binding).

Japan’s Recent Relationship with the IWC

In September 2014, the IWC (having regard to the findings in the Whaling Case) adopted a resolution indicating that no further special whaling permits be issued until they had been reviewed by the Scientific Committee and had received recommendations by the IWC. In November 2014, Japan submitted a proposal for NEWREP-A (a new research whaling programme in the Southern Ocean) in which Japan acknowledged that it had ‘taken seriously the Court’s finding that the decision to grant special permits under Article VIII, paragraph 1, of the ICRW, “cannot depend simply on that State’s perception”’. Read the rest of this entry…

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Announcements: African Yearbook of International Law; University of Liverpool School of Law and Social Justice Workshop; Westminster Law School Event on the Chagos Archipelago; CfP Workshop on The Paths of Change in International Law; CfP Art and International Courts; CIL 2 Year Post-Doctoral Fellowships

Published on November 25, 2018        Author: 
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1. African Yearbook of International Law (AYIL). The Editors of the African Yearbook of International Law are pleased to invite scholarly contributions for its Volume 23. The structure of Volume 23 will consist of the following: a special theme, general articles, notes and commentaries, book reviews and basic documents (mainly African Union resolutions and African Conventions), and a section on State practice on matters of international law. The special theme for Volume 23 will be on “African States and Investment Law and Arbitration – Challenges and Opportunities”. Manuscripts may be emailed to either fatsah.ouguergouz@gmail.comadjovir {at} arcadia(.)edu or mob31 {at} cam.ac(.)uk. The Editors welcome papers covering all areas of public international law, including but not limited to the Special Theme, from both established and new scholars. For reference, the length of articles should normally not exceed forty double-spaced pages. Longer Articles will be accepted if the length is justified by the subject-matter. All articles must be submitted, in an electronic version (preferably in Word), to the Editors not later than 15 January 2019.
 
2. International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice Workshop. The International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice is organising a two-day workshop on loyal co-operation with the system of the European Convention on Human Rights and the means of reaction by the European Court of Human Rights when its judgments trigger discontent. The conference is open to both established and early-career scholars and practitioners, including PhD students. Interested participants should provide an abstract of no more than 500 words by 20 December 2018. The call for papers is available online here.  

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Activating the Third Pillar of the UNGPs on Access to an Effective Remedy

Published on November 23, 2018        Author: 
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The UN Guiding Principles on Business and Human Rights (known as the UNGPs or Ruggie Principles) were developed in 2008 by the UN Secretary General’s Special Representative, John Ruggie, and endorsed by the Human Rights Council in 2011. Comprised of three pillars to ‘protect, respect and remedy’ human rights violations, the third pillar on remedy has often been referred to as the ‘forgotten’ pillar. However, it is now garnering much greater attention.

While momentum around the third pillar is critical to the realisation of the UNGPs, a number of issues still need to be ironed out. One central question relates to Principle 27 which requires states to make ‘effective and appropriate non-judicial grievance mechanisms’ available. In this post, I suggest that non-judicial grievance mechanisms can contribute to access to an effective remedy but they also carry significant risks which are potentially accentuated in the context of businesses. I argue that much greater clarification is needed on when such mechanisms can be used and the standards of justice required of them, if they are to form part of a ‘bouquet’ of effective remedies foreseen by the UN Working Group on Business and Human Rights.

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Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state

Published on November 22, 2018        Author: 
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Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on this blog (see here and here) and elsewhere. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’. Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.

When a treaty uses the word ‘state’

The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship.  We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. Read the rest of this entry…

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The Global Compact for Migration: to sign or not to sign?

Published on November 21, 2018        Author: 
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The Global Compact for Safe, Orderly and Regular Migration (final draft of 13 July 2018) is scheduled for adoption at an intergovernmental conference in Marrakesh in December 2018. But in the run-up to this conference, several states, beginning with the United States already in 2017, now followed by Austria, Hungary, the Czech Republic, and others, have announced that they will  not sign the text. Will refusal to sign be relevant in terms of international law? What is the juridical quality of the Compact, which legal consequences does it have, and which normative “ripples” might it deploy in the future? The controversy over the Compact sheds light on the legitimacy of international law-making processes and on the precarious normative power of international law.

A Brief Glance at the Contents

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The Compact’s “guiding principles” are, inter alia, people-centeredness, international cooperation, national sovereignty, rule of law and due process, and sustainable development (para. 15). These are well-established and to a large extent also legally entrenched principles. The 23 “objectives” are partly generally recognised such as saving lives (objective 8), respond to smuggling (objective 9), or eradicate trafficking (objective 10). Some mainly correspond to interests of states of origin (such as promoting transfer of remittances, objective 20), others basically satisfy interests of receiving states (such as facilitating return and readmission (objective 21). In substance, the Compact partly repeats international law as it stands or refers to existing instruments (see notably preamble para. 2), partly contains platitudes, and partly contains novel ideas. Read the rest of this entry…

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Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)

Published on November 20, 2018        Author: 
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The US – Certain Measures on Steel and Aluminium Products case (US Steel Dispute) has aroused numerous comments in the blogosphere (see e.g. here, here, here, here, here and here) which already give a very good impression of the legal questions involved and of what is at stake at the WTO these days. One of the most controversial legal issues brought up by the case (and by two other recent cases: Russia – Measures Concerning Traffic in Transit (Russia – Transit) and United Arab Emirates – Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of IP Rights; for comments see: here and here) is the justiciability of Article XXI GATT (security exceptions). The question of justiciability, however, has sometimes been portrayed as an either/or question by bloggers: Either justiciability or complete discretion for States. Moreover, commentators have scarcely elaborated on the further requirements of Article XXI para. b (i)-(iii) GATT with regard to the US steel dispute.

The following post shows that there are more options on the table than to allow States full discretion (option 1), or declaring security exceptions justiciable under a limited good faith standard of review (option 2), and that under all but the first option Panels are likely to declare Trump’s tariffs on steel and aluminium imports not to be covered by security exceptions. Still, finding some middle-ground position on justiciability could be useful (politically) to avoid the impression of judicial overreach.

Judicial Review: Several Options

Article XXI GATT (in the case at hand lit. b) seems to allow a Member State to self-judge what it “considers necessary for the protection of its essential security interests”. Security exceptions have scarcely been used in the GATT and earlier WTO era, and unfortunately the meaning of “considers necessary” in Article XXI GATT so far has not been authoritatively elucidated by a Panel or the Appellate Body (AB). Read the rest of this entry…

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Lost in Space? Gaps in the International Space Object Registration Regime

Published on November 19, 2018        Author: 
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Despite having been operational for over 15 years, the satellites NSS-6 and NSS-7 are missing from the United Nations Register of Objects Launched into Outer Space (‘International Register’). Just as we do not accept unregistered cars on our roads, we should not accept unregistered space objects in orbit. Registration ensures that the state responsible for a specific space object can be readily identified, and, if necessary, presented with a claim under the Convention on International Liability for Damage Caused by Space Objects.

For this reason, under the international space object registration regime, all space objects must be registered by a state. So which state is shirking their duty to submit NSS-6 and NSS-7 to the International Register?

The two satellites were built by Lockheed Martin Commercial Space Systems (‘Lockheed Martin’), a United States-based corporation, for New Skies International NV (‘New Skies’), a Dutch corporation. Launch services were provided by Arianespace SA (‘Arianespace’), a French corporation. Both launches took place from French territory. Once in orbit, ownership of the satellites was transferred from Lockheed Martin to New Skies. So at least three states are involved – and the question is which of these states should register NSS-6 and NSS-7 (spoiler alert: I think it’s the Netherlands). This episode is used as a case study to illustrate the ambiguities and gaps that exist in the international space object registration regime. I conclude the post by making a proposal which seeks to find a way to close these gaps. Read the rest of this entry…

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Announcements: CfP CCSI Yearbook on International Investment Law and Policy; CfP ASIL IOIG Workshop; CfP ILA-ASIL Asia-Pacific Research Forum; CfP It Takes Two to Tango

Published on November 18, 2018        Author: 
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1. Call for Papers: CCSI Yearbook on International Investment Law and Policy. The Columbia Center on Sustainable Investment (CCSI) is pleased to announce a call for papers for the edition of the Yearbook on International Investment Law and Policy covering 2018. The Yearbook is published by Oxford University Press (OUP) in hardcopy, as an ebook, and as part of OUP’s Investment Claims online service. The Yearbook monitors current developments in international investment law and policy. Beginning with the 2017 edition, Part One will include short pieces providing succinct overviews of recent developments and trends in international investment treaties and treaty policy; investor-state dispute settlement; institutional developments; and developments relevant to particular regions or countries. Part Two continues to include detailed analyses or short think pieces on central thematic issues in the contemporary discussions on international investment law and policy. All papers must be original texts and are subject to double-blind peer review. Original contributions to be considered for publication in the Yearbook are accepted on a rolling basis until 1 February 2019; please send submissions to Lisa Sachs (lsachs1 {at} law.columbia(.)edu). Further information can be found on CCSI’s website.
 
2. Call for Papers: ASIL IOIG Workshop. The International Organizations Interest Group (IOIG) of the American Society of International Law (ASIL) welcomes abstract submissions for its biennial work-in-progress workshop, to be held on Friday 15 March 2019 at Seton Hall School of Law in Newark, NJ. Please submit your abstract of an unpublished paper in the field of international organizations by 1 December 2018 at ioig {at} asil(.)org
 
3. Call for Papers: 2019 ILA-ASIL Asia-Pacific Research Forum, Taipei . The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on 17 – 18 May 2019 at Howard Civil Service International House in Taipei, Taiwan, ROC. The theme of the Research Forum is “International Law and Emerging Powers: New Policy Challenges in the Asia-Pacific.” The Research Forum will feature two keynote speakers: Dr Christopher Ward SC, President of the ILA and Justice Chang-fa Lo of the ROC Constitutional Court. Paper proposals must be submitted to ila {at} nccu.edu(.)tw. Selected papers will be published in the Chinese (Taiwan) Yearbook of International Law and Affairs. The call for paper is available at the Research Forum website. Members of the organizing committee include Professors Chun-i Chen, Weixia Gu, Pasha Hsieh, Nigel Li, Torsten Stein, Lisa Toohey and Pei-Lun Tsai. The deadline for submissions is 10 December 2018. 

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EJIL Call for Papers: International Law and Democracy Revisited – The EJIL 30th Anniversary Symposium

Published on November 17, 2018        Author: 
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EJIL was founded in 1989, coinciding with the fall of the Berlin Wall and the attendant excitement encapsulated by that well-known optimistic/hubristic End of History phraseology, with predictions of liberal democracy to become regnant in the world and a New International Legal Order to replace the old First World-Second World-Third World distinctions.

Thirty years later the state of democracy, whether liberal or social or any other variant, seems to be far from sanguine.

Here is but a partial list of the challenges to democracy in the contemporary world:

  • The advent of so-called ‘illiberal democracies’
  • The crisis and breakdown of trust within established democracies
  • The reality or otherwise of states with ‘formal democracy’ often reduced to little more than elections, more or less free
  • The accountability and rule of law concerns, famously termed GAL concerns, which transnational governance regimes raise as indispensable features of democracy
  • The persistent ‘democracy deficit’ or ‘political deficit’ of the European Union and similar Organizations
  • The emergence of the global ‘data economy’ with mega platforms calling into question basic assumptions about territory and jurisdiction and calling into question the ability of democratic regimes to reign in such platforms increasingly questioned
  • The impact of both financial markets and international monetary bodies on the internal margin of manoeuvre and democratic choices of economic management
  • Democracy and global inequality: The relationship between counter-democratic ideologies, legal reforms and political processes at the domestic and global levels and social and economic processes such as the shrinking middle class and the lasting ramifications of the 2008 economic crisis.

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