Two Weeks in Review, 7 November – 20 November

Javier García Olmedo and Lorenzo Gradoni offer insights on the recent events leading to the seizing of assets of AMIC Ukraine, by the Bureau of Economic Security of Ukraine (ESBU). AMIC Ukraine is the local subsidiary of AMIC Energy, an Austrian private equity firm. The Ukrainian authorities acted on charges of tax fraud, money laundering and the company’s connection to Russia. AMIC Ukraine, backed by Austia’s Ambassador to Ukraine stated in a press conference that, if necessary, they will file claims to international tribunals. The writers note, that this is the first time that a corporation threatens to file an ISDS claim against Ukraine after and despite the ongoing invasion. In turn, this might trigger a wider chain of reactions. The two conclude that the EU should probe this matter and act upon its finding to ensure the integrity and effectiveness of the sanctions regime. 

Read the full post here.

Marco Bronckers, examines the EU’s Inconsistent Approach toward Sustainability Treaties. In his post, he sheds light on the discrepancies between due diligence legislation and trade policy put forward by the EU in 2022. He asserts that the EU corporate sustainability due diligence directive places stricter obligations on companies than the policy paper on the Trade and Sustainable Development places on the EU itself and its partners. Bronckers concludes that: ‘There needs to be a better connection between obligations that EU governments impose on themselves, and want to impose on companies when it comes to implementation, enforcement and sanctions in respect of sustainability treaties.’

Read his full analysis here.

In her post, ‘Of Mazes and Layers: Can a UN Convention on Tax Change the Rules of the Game?’, Luiza Leite de Queiroz, explores the recent decision of the UN General Assembly’s Economic and Financial Committee to table a draft resolution calling for the elaboration of a UN convention on international tax cooperation. Leite de Queiroz concludes:

‘Mundane as it may sound, the only true antidote against complexity is simplicity. As we presently stand, the aim and scope of the convention are yet to be determined. If the UN chooses to overlap efforts and re-write parts of existing norms to completely shift the centre of gravity of international taxation, the OECD will be perfectly vindicated in its (likely) claims. If, however, the UN uses the convention to strategically assert itself as the rightful birthplace of a new permanent inter-state dispute resolution mechanism, an important power transfer can still take place without the political fatigue that comes with direct confrontation. Unlike the UN, the OECD cannot properly claim to have adjudication expertise, and defending the integrity of current mechanisms on the basis of their adherence is hardly admissible. But what is more, the prerogative to design a fresh adjudication system must be taken for what it can offer: a real chance at changing the configuration of the maze and the dynamic of the game.’

Read her full analysis here.

In their post, ‘Desk Rejections’, Joseph Weiler, Gráinne de Búrca and Sarah Nouwen, explain the procedure at EJIL and I•CON that results in desk rejections. 

Read their full note here. 

Read her full analysis here.

In his post, ‘Towards Advisory Opinions of the International Criminal Court’, Giorgi Nakashidze examines the Decision on the Admissibility of the Appeal in the case of The Prosecutor v. Mahamat Said Abdel Kani (“Said Decision”). Nakashidze argues that the Said Decision is a turning point as it raises the possibility to extend the ICC’s jurisdiction to give advisory opinions by amending the Rules of Procedure and Evidence. However, it is highly likely that in the process of adopting the new procedures by a two-thirds majority of the Assembly of the State Parties, the activation of the ICC’s competence to render advisory opinions will face legal, policy, and legitimacy-based challenges, both from inside and outside the Court.

Read his full analysis here.

Marko Milanovic offers his analysis of the recent missile strike on a village in Poland, near the Ukrainian border. The attack prompted immediate fears of escalation and of a more direct entry of NATO states into the Russian/Ukrainian armed conflict. Milanovic concluded: 

‘To put a long story short, on one view Ukraine would be responsible for any errors its organs and agents have made, however innocent, and Poland in particular could not be expected to bear the cost of a use of force against it. On another view, an honest and reasonable mistake of fact could operate as an excuse or justification – if the relevant Ukrainian agents did all that could reasonably be expected of them to prevent the S-300 system from hitting Polish territory while defending Ukraine against Russian attacks, Ukraine’s own reliance on self-defence would preclude the wrongfulness of the injury done to Poland. (My own view is that the former option is at least generally the right one in the ad bellum context; this is of course also an issue that arises in other contexts, especially in responses to cyber attacks). It will be very interesting to observe what legal positions the affected states eventually take on this matter, in the case the hypothesis of a misdirected Ukranian S-300 strike ultimately proves correct.’

Read the full post here.

Vivianne Yen-Ching Weng and Yu-Jie Chen explore the ECtHR’s judgment in Liu v. Poland, in which the court established, for the first time, a general standard for extradition requests from China in applying the non-refoulment principle. The two note: 

‘given that the Court has decided in Liu’s favor on the ground of Art. 3 of the ECHR, it is understandable, yet regrettable, that the Court does not go further to consider the applicant’s claim about his rights to a fair trial under Art. 6, examining Chinese criminal procedure under the “flagrant denial of justice” test (see Al Nashiri v. Poland, no. 28761/11). While this question may seem unresolved, we believe that the Court’s grounds for relieving the burden of proof for individualized assessment in Liu would also exist in scenarios evaluating whether a “flagrant denial of justice” exists and therefore should be similarly applicable to the test in future cases.’

Read the full post here.

In his post, ‘The Debate on the Debate on Xinjiang at the Human Rights Council: Three Framings’, Aldo Zammit Borda, reviews the debate on the draft decision to have a debate, on the findings of the Office of the UN High Commissioner for Human Rights on the situation in the Xinjiang, China. Zammit Borda asserts that states have an obligation to act on the evidence of violations emerging from Xinjiang. And the Western States have a duty to lead by example in this regard. The writer stresses that the failure of the debate on the debate at the HRC should serve as an eye opener to anyone about the fragility of the human rights regime and about how narratives of denial have not only made their way, but indeed prevailed, in the very body of the United Nations established to, according to paragraph 2 of UNGA resolution 60/251, promote ‘universal respect for the protection of all human rights and fundamental freedoms for all.’

Read the full post here.

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