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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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Announcements: CfA International Law in a Dark Time; Athens PIL Summer School 2017; CfP The Military Law and the Law of War Review; CfP Melbourne Journal of International Law; CfP Brill Open Law; Summer Session of Salzburg Law School

Published on April 30, 2017        Author: 

1. Call for Audience – International Law in a Dark Time. The Erik Castrén Institute of International Law and Human Rights and Peking University Institute of International Law Collaboration Project (ECI-PUIIL Project) will organize a seminar for doctoral students and junior researchers on “International Law in a Dark Time,” on 22 – 23 May 2017, in Helsinki. The seminar will be directed by professors Anne Orford (University of Melbourne) and Martti Koskenniemi (University of Helsinki). Up to 30 participants may register to be in the audience. Please register here. The deadline for registrations is 15 May 2017. See here for the seminar program.

2. Athens PIL Summer School 2017: ‘Migratory Flows in the Eastern Mediterranean: The Present and the Future’. The Athens Public International Law Center – Athens PIL is organizing a Summer School dedicated to ‘Migratory flows in the Eastern Mediterranean: The present and the future’. The Summer School will be hosted at the National & Kapodistrian University of Athens on 19 – 23 June 2017. The lectures will be delivered in English, by leading academic experts and practitioners in refugee and migration law and the course will include on-site visits to hotspots and first-reception camps around Athens. We particularly welcome mature postgraduate students and early-stage researchers but also practicing lawyers, policy-makers, NGO workers, international agency staff and other professionals working with refugees and migrants. The number of participants is limited to 25 participants from EU and non-EU countries. The deadline for submission is 15 May 2017. The Call for Applications is available here. For further information and registration please see here.

3. Call for Papers: The Military Law and the Law of War Review.  The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch. For its 2016 – 2017 issue (vol. 55/1), the Review’s editorial board welcomes submissions that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). In particular, the editorial board invites scholars and practitioners to submit articles pertaining to the international law of military operations. The deadline for submissions is 15 June 2017. Submissions should be sent by e-mail to brussels {at} ismllw(.)org and will be subject to double-blind peer review. Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries can be sent to the abovementioned e-mail address. Read the rest of this entry…

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New EJIL:Live! Interview with Liam Murphy on his Article “Law beyond the State: Some Philosophical Questions”

Published on April 29, 2017        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Liam Murphy of New York University, whose article, “Law beyond the State: Some Philosophical Questions”, appears as the central piece in an EJIL: Debate! in Volume 28, Issue 1.

A legal philosopher, Professor Murphy takes up the challenge of exploring the realm of international law, an area largely ignored by Anglo-American legal philosophers since H.L.A Hart. Professor Murphy seeks to offer new perspectives on the famous chapter 10 of Hart’s The Concept of Law, and to critique the understanding of the international legal system set out therein. This then serves as the framework for his discussion of two core issues: the relevant grounds of law in international law – what factors are relevant in determining the content of law in force – and what makes international law a legal order. Professor Murphy also reflects on the Replies to his article, published in the same issue of the Journal, and how these prompted him to give further thought to the issues addressed in his article.

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Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

Published on April 28, 2017        Author: 

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this criticism is misguided because it confuses the role of states as disputing parties and as treaty parties. States have dual roles in the investment treaty system: they are treaty parties with a legitimate interest in the interpretation and application of their treaties and they are disputing parties with a desire to avoid liability in particular cases. When it comes to questions of institutional design, I think that we need to adopt a treaty party framework of analysis, not a disputing party one.

In a particular dispute, an investor can appoint one arbitrator and a state can appoint another. Once a case is filed, it is hardly surprising that both disputing parties would seek to appoint arbitrators who are broadly sympathetic to their positions. This tends to generate polarization within the field with arbitrators often being thought of (whether accurately or not) as having either a “pro-investor” or a “pro-state” bias. This division helps to explain why, when judged from the perspective of the dispute resolution framework, investors and members of the arbitral community have raised concerns that having tribunals selected by states only would lead to biased results. This is so even though neither the claimant investor nor the respondent state would appoint the particular tribunal members tasked with hearing the case.

When it comes to institutional design, however, we need to shift our focus from the disputing party framework to the treaty party framework. Read the rest of this entry…

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Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?

Published on April 28, 2017        Author: 

Slow, partial or sometimes even non-implementation of judgments of the European Court of Human Rights is the Achilles heel of the European Convention system. The latest annual report of the Council of Europe’s Committee of Ministers attests to some positive trends — a record number of cases closed in a single year and a decrease in the number of pending cases revealing systemic or structural problems — yet still 9,944 judgments remain unimplemented. While this is the first time since 2010 that the figure has dipped below 10,000, it remains a substantial caseload for the Committee of Ministers, the body formally tasked with monitoring implementation.

How, then, to tackle the problem? A thought-provoking contribution to this debate has been made by Kanstantsin Dzehtsiarou and Fiona de Londras in their article, ‘Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights’.

Infringement proceedings under Article 46(4) of the Convention were introduced by Protocol No. 14 to the Convention in order to provide a means of increasing pressure on obstructive states short of the extreme sanction of suspension or expulsion. This — as yet unused — mechanism empowers the Committee of Ministers to refer a state back before the Court if it refuses to implement a judgment.

Dzehtsiarou and de Londras argue that invoking Article 46(4) would be ‘futile and counterproductive’ because, among other reasons, it risks overburdening the Court (specifically its Grand Chamber, which would consider any referrals) and further delaying implementation while proceedings are pending. Moreover, they venture, infringement proceedings would do nothing to address the root causes of non-execution and could provoke a backlash by impugned states, potentially damaging both the effectiveness and legitimacy of the Convention system. Read the rest of this entry…

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Excusing Humanitarian Intervention – A Reply to Jure Vidmar

Published on April 27, 2017        Author: 

The US strikes in Syria, for which the US offered no legal justification, have once again ignited the debate on the qualification of such acts as illegal but legitimate – a label that had been used, in its day, to describe NATO’s use of force in Kosovo. Legally speaking, what does this sentence mean? Jure Vidmar, in his post on this blog, attempted to explain it by means of the distinction between justification and excuse. As Vidmar explains, excuses usually (but by no means always) cover situations in which conduct, while illegal, is nevertheless the morally right thing to do in the circumstances. He sees this type of reasoning behind the reactions of other States to the US action – expressing support for the action as the right thing to do, but unwilling to go as far as to say that the conduct was permitted or lawful.

The argument is certainly plausible (although note that no State has used the language of excuse in these circumstances which is, in my view, somewhat problematic for the argument). However, it raises a number of important issues which may, ultimately, undermine the very purpose of excusing an actor engaged in humanitarian intervention. I want to consider three of these here: (i) the current recognition of excuses in international law; (ii) the availability of excuses in respect of the breach of peremptory rules; and, (iii) the potential effects of excusing states for humanitarian intervention. I will address each of these in turn.

Excuses in International Law

Excuses are defences that arise from properties or characteristics of actors which, while having no effect on the illegality of the act, shield that actor from responsibility for its (illegal) actions. By contrast, justifications are defences that arise from properties or characteristics of acts and have the effect of rendering those acts lawful, despite apparently breaching a rule of the legal order. Read the rest of this entry…

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Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR

Published on April 26, 2017        Author: 

On 30 March 2017, the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR (the right not to be subjected to forced labour). This judgment is an important addition to the gradually growing body of case law under Article 4 of the ECHR. Against the background of the overall prolific output of the Strasbourg Court, it might come as a surprise that the case law under Article 4 is very limited. In addition to the line of cases where the state demands services, which could amount to forced labour (see, for example Chitos v. Greece), there have only been seven cases in which the Court had to address circumstances where abuses inflicted by non-state actors (i.e. employers) qualify as slavery, servitude, forced labour or human trafficking under Article 4. Chowdury and Others v. Greece is the eighth one. It is, however, the first case where the Court found that exploitation of irregular migrant labour amounts to forced labour. The previous cases (Siliadin v. France and C.N. and V. v. France), where the Court determined that the factual circumstances amounted to forced labour, involved children who provided domestic services.  Chowdury is also the first case where the Court found that the victims were subjected to forced labour, but not to servitude.

Chowdury and Others v. Greece has already received wide media coverage (see the Guardian, New York Times) and has been assessed as constituting an important advancement. After briefly describing the factual circumstances and the findings, in this post I would like to take a more critical approach to that part of the judgment where the Court addresses the definitions of servitude, forced labour and human trafficking in human rights law. Despite the positive outcome, the judgment Chowdury is in some respects lacking in rigor in terms of delineating the definitional boundaries of the above mentioned concepts. Read the rest of this entry…

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