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Blog of the European Journal of International Law
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So, Has This Ever Happened Before?

Tue, 09/19/2017 - 19:31

For the past week or so I’ve been enjoying the start of my sabbatical in New York, as a visiting professor at Columbia this semester. And for the past couple of days I’ve been enjoying – well, experiencing – the chaotic collapse of parts of the city during the UN General Assembly. And today I could enjoy – well, behold – the spectacle of the President of the United States threatening another UN member state with nuclear destruction at the podium of the General Assembly:

Photo credit LA Times: http://www.latimes.com/world/la-un-general-assembly-live-updates-world-awaits-president-trumps-first-assembly-20170918-htmlstory.html

If this is not twisted enough, now North Korea’s reckless pursuit of nuclear weapons and ballistic missiles threatens the entire world with unthinkable loss of human life.

It is an outrage that some nations would not only trade with such a regime, but would arm, supply, and financially support a country that imperils the world with nuclear conflict. No nation on earth has an interest in seeing this band of criminals arm itself with nuclear weapons and missiles.

The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.

Note the nature of the threat – if the US is forced to defend itself or its allies, it will totally destroy North Korea (not – react to the extent necessary and proportionate; presumably even a preemptive self-defense theory would be on the table). Note also how the United Nations is a ‘they’ rather than a ‘we.’  Question for the readers: has this ever happened before? Shoes have been banged at that podium, of course, and sulfur has been smelt. Yet even at the height of the Cold War, has a head of state of a nuclear-weapons state used this kind of directly threatening language? Or is this simply old-fashioned nuclear deterrence inartfully expressed?

Twenty Years of the ECHR in Ukraine

Mon, 09/18/2017 - 08:00

Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).

This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss the impact of the ECHR and the ECtHR case law on the Ukrainian legal system, highlighting some positive examples. We will also analyse a somewhat surprisingly optimistic attitude towards the Court prevailing in Ukraine, especially in the context of a growing anti-Strasbourg sentiment in a number of the CoE states. We will conclude our post with examining why Ukraine needs to do more in terms of the implementation of the ECHR and why it is important to the ECtHR that Ukraine succeeds in these efforts.

Basic Statistics

It is true that, since the adoption of the ECHR, Ukraine has had a high number of applications directed against it. As of 1 July 2017, there are 19,166 applications in total pending against Ukraine before the Court, which constitutes more than 20% of total applications before the ECtHR. The number of applications, however, increased exponentially starting in 2013 (which coincides with the events of the EuroMaidan protests), when the applications almost doubled in comparison with the previous year (7,791 applications — in 2012; and 13,132 — in 2013). In 2016, the number dropped to 8,658 applications, which still puts Ukraine on the first place based on the number of applications (followed by Turkey, Romania, Russia, and Hungary). The President of the Supreme Court of Ukraine stated, generalising somewhat, that the majority of the applications in 2016 concerned the prolonged non-enforcement of final domestic decisions (65%), the property losses in Eastern Ukraine as a result of the hostilities (22%), and the dismissal of the civil servants based on their vetting (most of the rest of the applications).

Apart from the skyrocketing numbers of applications, Ukraine is also one of the top ‘violators’ of the ECHR. Almost 6% of all ECtHR judgments concerned Ukraine, and in 98.76% of them Ukraine was found at least in one violation of the Convention. The majority of violations concern the right to fair trial (45%), protection of property (30%), the right to liberty and security (23%), and the right to an effective remedy (18%).

Why Such High Numbers of Applications and Violations?

(1) Failure to Deal Effectively with Repetitive Cases

The high number of applications does indicate the existence of a large amount of the ECHR violations. The case law demonstrates that the majority of violations is found in the repetitive cases that require structural reforms in criminal justice, judiciary, the army, and the asylum system. The ECtHR has identified these structural problems and suggested the national measures for Ukraine in a number of pilot and ‘quasi-pilot’ judgments, including in Yuriy Nikolayevich Ivanov v Ukraine, Kharchenko v Ukraine, Kaverzin v Ukraine, Vyerentsov v Ukraine, and others.

Regrettably, Ukraine has not made much progress in adopting the measures required by those judgments, which prescribe both updating the legislation and ensuring its effective implementation through changes in the judicial and administrative practice. Although the adoption of new legislation would appear less challenging than transforming the existing practice, some of the legislative changes have taken an excessive amount of time owing to the protracted political turmoil and the lack of political will. An illustrative example of this can be the prolonged absence of the effective remedy to secure adequate redress for non-enforcement of domestic judgments, which lays behind the most frequent violations of the ECHR by Ukraine. This fact was highlighted by the ECtHR in the 2010 pilot judgment Yuriy Nikolayevich Ivanov v Ukraine. Ukraine was supposed to adopt general measures to tackle this issue within two years, but failed to do so. Only in 2016, the Ukraine’s Parliament managed to adopt two laws, introducing private bailiffs and streamlining the enforcement proceedings, which might improve the situation with the non-enforcement of domestic judgments.

(2) Translation Issues with the ECtHR Case Law

With the adoption in 2006 of the special Law on the Enforcement of Judgments and Application of Practice of the ECtHR (the 2006 Law), the Ukrainian judges and state officials refer to the ECHR and the ECtHR case law rather frequently. The 2006 Law inter alia provides for the ECHR and the ECtHR case law being the ‘sources of law’ that should be applied by the Ukrainian courts (Article 17). The reference to the ECtHR case law, nonetheless, happens not always, with insufficient analysis, and frequently incorrectly (see the discussion in Ganna Yudkivska’s piece here pp 461–462). The wording of the 2006 Law leads to the ambiguity on whether the domestic courts are obligated to use the ECtHR judgments in the cases where Ukraine is not a party. According to the 2006 Law only the judgements against Ukraine must be translated into the official language [Ukrainian] and published by the state authorities (Articles 1 and 6), which leaves the other ECtHR case law not properly ‘promulgated’ according to the law (see Article 57(2) of the Ukrainian Constitution, para 7 of the Review of the Supreme Court of Ukraine Practice, and the respective Decree of President of Ukraine). As a result, some argue (incorrectly, we believe), that the Ukrainian courts should consider exclusively judgments in the cases against Ukraine. Such an interpretation has given rise to the inconsistencies in the court practice.

Even if the broader interpretation of Article 17 prescribing the application of all the ECtHR case law prevails, in reality most of the Ukrainian judges, lawyers, and prosecutors are not fluent in the official languages of the ECtHR and thus unable to make use of the bulk of the Court’s jurisprudence. The issue is not unique to Ukraine. The ECtHR has already launched a case-law translation programme, which makes the Convention standards more accessible for the Ukrainian judges and state officials. The Government Agent of Ukraine before the ECtHR has even suggested the development of the Ukrainian version of the HUDOC, but it is unclear when this project materialises. Until then, the lack of translation frequently leads to the disregard of a significant part of the ECtHR jurisprudence and the incorrect interpretation of the ECHR.

(3) Lack of Trust in the Domestic Judicial System

In 2015, a public opinion poll indicated that 81% of Ukrainians show distrust in the domestic courts. At the same time, 19% of the population consider the ECtHR the most effective remedy for protection of human rights, with the number reaching 31% in Donbass (see the 2017 nationwide study on human rights in Ukraine). Even the top state officials have used the ECtHR as the ultimate remedy, circumventing the domestic judicial system (see e.g. Tymoshenko v Ukraine, Lutsenko v Ukraine, Volkov v Ukraine, and reportedly soon Saakashvili regarding the loss of his citizenship). Despite the suggestions by some authors that the ECtHR is (or should become) a constitutional court of Europe, what is happening in Ukraine is going even further than that, turning the ECtHR into a full-fledged trial court. This is an intolerable situation both for the ECtHR and Ukraine, since the states are the ones that have a primary responsibility to ensure respect for the human rights established in the ECHR.

To deal with this issue Ukraine has set up a major judicial reform by adopting the amendments to the Constitution and four new laws (see a brief discussion on the judicial reform in Ukraine here and here). One of the goals of the reform is to ensure independence and effectiveness of the judiciary, and ultimately regain the people’s trust in the domestic judicial system. Whether it will result in a decrease of the number of the applications to the ECtHR and the violations of the ECHR, however, will be possible to assess not earlier than in 2018, at the final stages of the reform.

 (4) Armed Conflict in Eastern Ukraine and Annexation of Crimea by Russia

The ECtHR confirmed that it received around 3,700 individual applications related to the events in Crimea and the hostilities in Eastern Ukraine against Ukraine and/or Russia (as of June 2017). The number of the applications will only increase with the prolongation of the armed conflict. Clearly, domestic remedies should be created, as much as possible, to provide effective relief to the persons who have suffered from the armed conflict. That said, the tendency of bringing claims arising from an international armed conflict to the international (European) level is quite predictable, even though the ECtHR has not been designed to deal with floods of applications coming from victims of war.

Positive Changes as a Result of Ukraine’s Accession to the ECHR

Ukraine’s accession to the ECHR has brought about many positive developments in the domestic legal system. Above all, the ECHR had a direct influence on the 1996 Ukrainian Constitution, which was being drafted at the time of the negotiations on joining the CoE. As a result, many of the Constitution’s provisions, in particular Chapter II, drew directly from the Convention. This was, for instance, highlighted by the Ukrainian Constitutional Court in its landmark decision on the abolition of death penalty, particularly with regard to Article 28 of the Ukrainian Constitution, which ‘reproduces the provisions of Article 3 of the ECHR’ (Decision № 11-рп/99 of 29 December 1999 para 6). Furthermore, the Convention has been an underlying factor for the large-scale legal reform carried out in direct cooperation with the CoE. One of more recent examples would be the 2012 Code of Criminal Procedure, which is also often credited to the ECtHR case law and the pressure from the CoE (see Yudkivska p 487), as well as the ongoing judicial reform.

Attitude towards the ECtHR and Heightened Expectations

The attitude of Ukraine and the Ukrainians towards the ECHR and the Court is positive, which might come as a surprise at a time of a growing anti-Strasbourg sentiment elsewhere in Europe (see e.g. the instances of direct challenges by a number of states to the authority of the ECtHR here). 

The inter-state applications against Russia related to the events in Crimea and Eastern Ukraine are the main reason why Ukraine is so hopeful towards the ECtHR (there are currently five inter-state applications, discussed here and here). The Ukrainian Government’s optimism appears to be based on the assumption that the Court would rule in Ukraine’s favour. In that event, even if the Russian authorities refused to execute the judgments (not an unlikely development, see for example the discussion of Anchugov and Gladkov v Russia and YUKOS v Russia here and here), Ukraine would gain political support of the international community, and — as the Minister of Justice of Ukraine put it — would ‘set the historical record straight’ (see the press conference organised by the Ministry of Justice of Ukraine).

Furthermore, embracing the ECHR values is largely associated in Ukraine’s public discourse with the EuroMaidan events, the 2014 EU–Ukraine Association Agreement, the visa free regime, and the broader EU membership aspirations. In fact, the 2014 Association Agreement establishes human rights and fundamental freedoms defined by the ECHR as the essential elements of the agreement (Article 2).

Why Ukraine Should Do More?

Taking the ECHR and the ECtHR case law not seriously enough comes at a price for both the ECtHR and Ukraine. The ECtHR is overwhelmed by the excessive caseload from Ukraine, which undermines the long-term effectiveness of the Court. Ukraine bears enormous social costs, including for paying the satisfaction for violations (around 20,5 million Euro only in 2016) and reputational damage. More generally, having more effective, fairer judiciary, law enforcement, and political system, apart from improving Ukraine’s business environment and economic prospects, will have huge non-material benefits for the society and bring it closer to the long-sought European integration. The persistent non-compliance with the ECtHR judgments, conversely, may lead to the infringement procedure, the inter-state applications against Ukraine for the systemic violations of human rights, or the state responsibility under general international law.

Any views expressed in this post represent the authors’ own views and not those of the organisations for which they work/worked or in which they are members.

Announcements: ILA British Branch Conference; iCourts Visiting Programme; PluriCourts Workshop; CfP 60 Years of the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards; CfP Conference on Disarmament; International Administrative...

Sun, 09/17/2017 - 09:00
1. ILA British Branch Conference. This year’s conference will take place on September 22 and 23 at the offices of Clifford Chance. With the theme New International Order in an Isolationist World the conference will address the pressing challenges faced by international law in the political and economic climate prevailing in many regions of the world. These include the challenges caused by rising populism in Europe and North America and reactions against free trade and economic interdependence, manifested most obviously in the Brexit referendum and policies advocated by President Trump, the changing foreign policies of many countries towards military and diplomatic intervention in politically unstable regions and the flows of refugees into Europe, the role of international criminal law in the modern world along with the challenges faced by the International Criminal Court, and the increased scrutiny of the legitimacy of investment treaty arbitration, whether as a standalone system or as an aspect of mixed trade and investment agreements. The conference will begin with a keynote address from Ben Emmerson QC, UN Special Rapporteur on Counter-Terrorism and Human Rights followed by six panels covering the following topics: peace and security; human rights and international humanitarian law; international trade law; international investment law; regionalism; and accountability and remedies under international law, and will include selected speakers drawn from private practice, the public sector and academia in order to incorporate diverse perspectives, both theoretical and practical, on the conference theme. To view the conference programme and to register see here.   2. iCourts Visiting Programme. iCourts strongly encourages researchers – from PhD-students to tenured Professors – to visit iCourts and share their knowledge. Contributions may consist of published articles that credit iCourts, data-sharing, contribution to analysis, co-authorship with permanent iCourts staff, printed interviews with relevant people and other relevant documentation. Researchers with a particular interest in a closer association to iCourts may apply for an iCourts visitors grant. iCourts handle grant applications on an ad hoc basis, and offer the possibility of applying for research visits of up to 1 year. All incoming applications will be evaluated after 1 April and 1 October each year. For more information about the Visiting programme and how to apply, please see here.   3. PluriCourts Workshop on the Political and Legal Theory of International Courts and Tribunals. PluriCourts invites you to a workshop on The political and legal theory of international courts and tribunals, to take place in Oslo 18 – 19 June 2018. We welcome papers that address one or more such International Courts (ICs), on such themes as: the appropriate legitimacy standards for ICs from the perspectives of history of ideas and/or contemporary legal and political theory, such as human rights, transparency, or rule of law; their multilevel separation of authority, and its impact on adjudication; norm-indeterminacy and international adjudication; specialization and fragmentation in ICs; ICs and the international rule of law; and, independence and accountability of ICs. The deadline for submitting expressions of interest, with abstract, is 1 November. Some travel grants are available. 

 

4. Call for Papers – 60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Key Issues and Future Challenges. This Call for Papers has been launched by University Loyola Andalucia, University of Zaragoza and Club Español del Arbitraje (CEA), and with TDM and ITALaw as media partners. Academics, practitioners and policymakers are invited to submit extended abstracts or unpublished full papers on the referred topic to the conference directors (amlopez {at} uloyola(.)es var mailNode = document.getElementById('emob-nzybcrm@hyblbyn.rf-70'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%61%6D%6C%6F%70%65%7A%40%75%6C%6F%79%6F%6C%61%2E%65%73"); tNode = document.createTextNode("amlopez {at} uloyola(.)es"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-nzybcrm@hyblbyn.rf-70"); mailNode.parentNode.replaceChild(linkNode, mailNode); katiafachgomez {at} gmail(.)com var mailNode = document.getElementById('emob-tbzrm@tznvy.pbz-51'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%67%6F%6D%65%7A%40%67%6D%61%69%6C%2E%63%6F%6D"); tNode = document.createTextNode("gomez {at} gmail(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-tbzrm@tznvy.pbz-51"); mailNode.parentNode.replaceChild(linkNode, mailNode); ) by 30 November 2017. An International Conference will be held at the University Loyola Andalucia, in Seville, Spain, on 5-6 April 2018. The Conference is expected to comprise various keynote lectures and round tables with approximately 40 speakers. Practitioners at all stages of their careers and senior and junior scholars (including Ph.D. students) are encouraged to participate. The Conference directors expect to publish an edited volume in English by a relevant legal publishing house containing the most relevant papers presented in the Conference. Further information about the submission and publication process can be found at the Conference’s website.

5. Call for Papers for a Conference on Disarmament: International Legal Perspectives. The Faculty of Law at the University of Auckland will be hosting a conference on Disarmament: International Leal Perspectives on 7-8 June 2018. The conference aims to bring international legal scholars together to explore a wide range of disarmament law issues. We are inviting paper proposals on any aspect of disarmament law. If you would like to submit a proposal please send a one-page abstract and a short bio to Dr Anna Hood (a.hood {at} auckland.ac(.)nz var mailNode = document.getElementById('emob-n.ubbq@nhpxynaq.np.am-15'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%61%2E%68%6F%6F%64%40%61%75%63%6B%6C%61%6E%64%2E%61%63%2E%6E%7A"); tNode = document.createTextNode("a.hood {at} auckland.ac(.)nz"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-n.ubbq@nhpxynaq.np.am-15"); mailNode.parentNode.replaceChild(linkNode, mailNode); ) by Friday 13 October. If you have any questions do not hesitate to contact Associate Professor Treasa Dunworth (t.dunworth {at} auckland.ac(.)nz var mailNode = document.getElementById('emob-g.qhajbegu@nhpxynaq.np.am-16'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%74%2E%64%75%6E%77%6F%72%74%68%40%61%75%63%6B%6C%61%6E%64%2E%61%63%2E%6E%7A"); tNode = document.createTextNode("t.dunworth {at} auckland.ac(.)nz"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-g.qhajbegu@nhpxynaq.np.am-16"); mailNode.parentNode.replaceChild(linkNode, mailNode); ) or Dr Anna Hood (a.hood {at} auckland.ac(.)nz var mailNode = document.getElementById('emob-n.ubbq@nhpxynaq.np.am-15'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%61%2E%68%6F%6F%64%40%61%75%63%6B%6C%61%6E%64%2E%61%63%2E%6E%7A"); tNode = document.createTextNode("a.hood {at} auckland.ac(.)nz"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-n.ubbq@nhpxynaq.np.am-15"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).

6. International Administrative Law Centre of Excellence Annual Conference. On Thursday 26 October and Friday 27 October 2017, the International Administrative Law Centre of Excellence Annual Conference will once again bring together international civil servants, union representatives, lawyers, academics and others interested in International Administrative Law from around the world with a view to shaping and improving this area of the law. The conference will take place at Gray’s Inn which is located in the heart of London. To find out more about the conference and book your place, visit here

A Commentary on the Maritime Delimitation Issues in the Croatia v. Slovenia Final Award

Fri, 09/15/2017 - 11:20

I. Introduction

An arbitral tribunal, constituted under the auspices of the Permanent Court of Arbitration, issued its final and unanimous award in the Croatia v. Slovenia case on 29 June 2017. The arbitration concerned a territorial and maritime dispute between Croatia and Slovenia. This post will focus on the maritime delimitation issues. The present post will deal with the Arbitration Agreement of 2009 (“AA”) (II), the Junction Area (III), and the maritime boundary (IV) in turn. The questions of contamination of the proceedings and the annulment of inter-state arbitral awards have caused a series of controversies. These fall outside the scope of this post and have already been dealt with by Alison Ross and Peter Tzeng respectively. These issues were determined by the reconstituted arbitral tribunal in its partial award rendered on 30 June 2016.

II. The Arbitration Agreement of 4 November 2009

The dispute between the Parties was submitted to arbitration in accordance with an Arbitration Agreement signed by the parties on 4 November 2009 in Stockholm (Annex HRLA-75, Final Award), and witnessed by the then Swedish Prime Minister, Fredrik Reinfeldt, since Sweden then held the Presidency of the Council of the European Union (“EU”). The Arbitration Agreement is unique because it is the first intra-state arbitration agreement of its kind to be drafted under the auspices of the EU, despite the fact that this is not the first occasion where an international organisation was involved in such a task. [See for example the signature for specific purposes of the World Bank of the Indus Waters Treaty 1960, between India and Pakistan, although that treaty is much more complex and not just a simple arbitration agreement (see Article IX and Annexure G). See also for example the involvement of the African Union, the UN and a few EU member states in the drafting of the Comprehensive Peace Agreement 2005, which was witnessed by the Minister of Development Co-operation of the Netherlands on behalf of the EU, paving the way for the drafting of the Abyei Arbitration Agreement 2008, which was eventually signed by the government of Sudan and the Sudan’s People’s Liberation Movement Army only. Brooks Daly has written more on the procedural aspects of the Abyei arbitration.]

The brokering of the Arbitration Agreement by the EU is reflected in Article 9, which requires Slovenia to “lift its reservations as regards the opening and closing of negotiation chapters where the obstacle is related to the dispute”. This was an important provision for Croatia’s accession to the EU. It is to be noted that Slovenia had already been a member of the EU for approximately 5 years at the date of signature of the arbitration agreement, as it had acceded to the EU on 1 May 2004. On the other hand, on the date of signature of the Arbitration Agreement, Croatia was on the path to accession, which was to last for another 4 years, as it eventually became an EU member state on 1 July 2013.

There are two other points worth mentioning regarding the 2009 Arbitration Agreement. First, the applicable law as set out in Article 4 is unusual. The “rules and principles of international law” were applicable to determining the course of the maritime and land boundary (Article 3(1)(a)). International law, equity and “the principle of good neighbourly relations in order to achieve a fair and equitable result” were applicable to determining Slovenia’s junction to the High Sea and the regime for the use of the relevant maritime areas (Article 3(1)(b) and (c)). This is probably a rare instance of the principle of good neighbourly relations for the achievement of a “fair and just result” being encountered in a modern Arbitration Agreement. While it is doubtful whether such a principle could count as a “general principle of law recognised by civilized nations” within the meaning of Article 38(1)(C) of the Statute of the International Court of Justice, it might be regarded as similar to a requirement to determine a case ex aequo et bono under Art. 38(2) of the ICJ Statute. The inclusion of this source of “applicable law” is a curious addition, which can probably be explained by the fact that it was a product of negotiations under the auspices of the EU.

The second point worth mentioning regarding the Arbitration Agreement is that one of the tasks of the arbitral tribunal, as per Article 3 (b)-(c), was to determine “Slovenia’s junction to the High Sea” and “the regime for the use of the relevant maritime areas”. This is a peculiar insertion, and apparently led the arbitral tribunal to determine that starting point of the present arbitration was not whether Slovenia should have a junction to the high sea, but rather where the junction would be and what would be the package of rights given to Slovenia over that area. Apparently, the tribunal, determined that Croatia had probably conceded the point of whether there should be a junction area vis-à-vis its territorial sea during the negotiation of the arbitration agreement. The junction area appears to have been Slovenia’s sine qua non to sign the 2009 Arbitration Agreement.

III. The Junction Area

The junction area is by far the most interesting aspect of the final award for law of the sea enthusiasts (dispositif, section IV), although not the first of its kind [see The Treaty on the Redemption of the Sound Dues between Denmark and Sweden, done in Copenhagen on 14 March 1857 in C. Parry, Consolidated Treaty Series Vol. 116, No. 357 (1969)].

Map VII of the Final Award, p. 347

The tribunal gave “freedom of communication” “to all ships and aircraft, civil and military, of all flags or states of registration, equally and without discrimination on grounds of nationality, for the purposes of access to and from Slovenia, including its territorial sea and its airspace” (Section IV (B) (a)). This freedom consists in the “freedoms of navigation and overflight and of the laying of submarine cables and pipelines”, in addition to “other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines”. And here comes the interesting bit: the freedom of communication “shall not be conditioned upon any criterion of innocence, shall not be suspendable under any circumstances, and shall not be subject to any duty of submarine vessels to navigate on the surface or to any coastal State controls or requirements other than those permitted under the legal regime of the EEZ established by UNCLOS” (emphasis added by the author, Section IV (B) (c)). The freedom of communication looks prima facie unlimited and unconditioned. The words “for the purposes of access to and from Slovenia, including its territorial sea” appears in the first paragraph of the dispositif regarding the junction (Section IV (B) (a)). But the list does not end there.

 

The dispositif continues. Ships and aircraft exercising the freedom of communication “shall not be subject to boarding, arrest, detention, diversion or any other form of interference by Croatia while in the Junction Area”. Nevertheless, Croatia will remain entitled to adopt laws and regulations applicable to non-Croatian ships and aircraft in the in the Junction Area, giving effect to the generally accepted international standards in accordance with UNCLOS Article 39(2) and (3)” Chapter IV, (B) (f)). When reading this part of the dispositif, one is struck by the absence of any qualifier before the words “ships and aircraft”. One is left wondering: which ships? Of which nationality? All ships or just some? The arbitral tribunal considered that “ships and aircraft of all flags and all kinds, civil and military” were included (para. 1129, final award). So, whatever vessel does not carry the Croatian flag cannot be boarded, arrested detained or diverted or otherwise be interfered with it if it goes through the junction area? Given the potentially broad ramifications the absence of a qualifier could entail, it can only be anticipated that Croatia and Slovenia will negotiate and eventually enter into a bilateral agreement containing more detailed provisions as to the specifics of the usage regime in the junction area. This eventuality is recognised in the award itself (see the reference to “future agreements” in section IV (C), dispositif).

A way to interpret the potentially unconditioned nature of the freedoms of communication in the junction area (section IV(B), dispositif) is that while Croatia maintains sovereignty over the junction area, this area is quite small and the rights the arbitral tribunal granted are only limited to freedom of communication for the purposes of “uninterrupted and uninterruptible access to and from Slovenia, including its territorial sea and airspace”(para. 1123, final award). A final point about the junction area is that nothing in the award affects the IMO Separation Scheme in the northern Adriatic Sea or the rights and obligations arising under EU or international law (section IV (C), dispositif). So, if all else fails these provisions are the default legal regime applicable to the junction area between Croatia and Slovenia.

IV. Maritime Boundary

Now, let’s turn to the boundary in the Bay. Prima facie the arbitral tribunal seems to have given one quarter of the Bay to Croatia and 3 quarters to Slovenia (Section II, dispositif). But, one needs to keep in mind that, in the present case, we are not in a classic international law scenario like that in case between Costa Rica and Nicaragua, for example. Both Croatia and Slovenia are now members of the EU. As such EU law prevails as lex specialis over the general law of the sea regime. This means that the Common Fisheries Policy (“CFP”) of the EU applies between the two states, as per Articles 38-43 of the Treaty on the Functioning of the European Union. It ought to be recalled that the EU is a contracting party to the UNCLOS (Council Decision 98/392/EC of 23 March 1998) and to the 1995 UN Fish Stocks Agreement (Council Decision 96/428/EC of 25 June 1996), as well as to the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas of 24 November 1993 of FAO (OJ L 177, 16.7.1996, p. 26). Article 41 of the CFP Regulation 1380/2013 provides that member states in their 12 nautical mile zones should be empowered to adopt conservation and management measures applicable to all EU fishing vessels, provided the Union has not adopted measures specifically addressing conservation and management within the 12 nautical mile zone concerned. The distance across the Bay at its maximum, that is from the tip of Cap Savudrija to Cape Madona is 5 km. Accordingly it does not go beyond 12 nautical miles and it is therefore highly unlikely that Croatian fishermen will suffer from the delimitation of the arbitral tribunal within the territorial sea.

Last but not least, let us examine the boundary outside the territorial sea (dispositif, Section III). The arbitral tribunal, relying on Articles 74(1) and 83(1) of UNCLOS, adopted the three-stage approach espoused by the ICJ in its recent case-law (Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 3 at p. 66, para. 180, citing Maritime, Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61 at pp. 101-03, paras 115-22; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 624 at pp. 695-96, paras 190-93). 3 stages: (1) construction of equidistance line, (2) adjustment of the line to take into account special circumstances, (3) disproportionality test. There are no surprises to be found in this section of the arbitral tribunal’s award. The real question for the tribunal in terms of its determination of the maritime boundary was how much effect to give to Cape Savudrija (para. 1007, final award). The arbitral tribunal gave Cape Savudrija half-effect (para. 1014, final award), because the coastal configuration in the present case would produce an “exaggeratedly adverse effect if the strict equidistance line” were to be used, which would in turn exaggerate the “boxed-in” nature of Slovenia’s maritime zone (para. 1011, final award). This finding is in line with a jurisprudence constante and it was predictably applied by the arbitral tribunal (North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 3 at p. 51, paras 89-90; Delimitation of the Maritime Boundary between Guinea and Guinea Bissau, Decision of 14 February 1985, R.I.A.A. Vol. XIX, pp. 149-96, p. 187 at paras 103-04; Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, (2012) ITLOS Case No. 16, Judgment of 14 March 2012, paras 292-97).

This approach is also in line with the Continental Shelf Case (France/United Kingdom), R.I.A.A. Vol. XVIII, p. 114, paras 244, where the tribunal considered that the projection of the Scilly Isles into the Atlantic region constituted an element of distortion, which was material enough to justify the delimitation of a boundary other than the strict line envisaged. As such it recognized that the position of the Scilly Isles west-south-west of the Cornish peninsula constituted a “special circumstance” justifying a boundary other than the strict median line (ibid, p. 114, para. 245). Nevertheless, the tribunal considered that this special circumstance did not give it a carte blanche (ibid, pp. 114-5, paras. 245-7), and it gave it half-effect (ibid, p. 117, para. 251). The margin of discretion that international courts and tribunals enjoy when the equidistance line has a cut-off effect was underscored by the ICJ in the Territorial and Maritime Dispute (Nicaragua v. Colombia), I.C.J. Reports 2012, p. 703, para. 215, when it considered that in order to achieve an equitable solution the maritime entitlements of parties should produce their effects in a “reasonable and mutually balanced way”. In conclusion, the arbitral award in Croatia v. Slovenia in so far as the maritime delimitation is concerned is in line with the corpus of international law in this area, as established by a series of cases handled by the ICJ, ITLOS and arbitral tribunals alike.

The ICESCR as a Legal Constraint on State Regulation of Business, Trade, and Investment: Notes from CESCR General Comment No. 24 (August 2017)

Wed, 09/13/2017 - 09:00

Note from the author:  This post is based on a Keynote delivered in Rio de Janeiro, Brazil, on 28 August 2017 at the Expert Workshop “Transformative Constitutionalism in Latin America and International Economic Law: Avoiding Conflict and Fostering Dialogue”, jointly organised by the Fundacao Getulio Vargas (FGV) Direito Rio de Janeiro Brazil and the Max Planck Institute of Comparative Public Law and International Law, Heidelberg, Germany.

On 10 August 2017, the Committee on Economic, Social and Cultural Rights (hereafter, the “Committee”) released its General Comment No. 24 (2017) on State obligations under the ICESCR in the context of business activities.  General Comment No. 24 is arguably the most impactful document yet released by the CESCR, since it elaborates on the role of the ICESCR as a legal constraint on State regulation of business activities, especially in the area of investment treaty-making.  As I have argued elsewhere in more detail (Public Policy in International Economic Law:  The ICESCR in Trade, Finance and Investment, OUP 2015), the implementation of the ICESCR (and related human rights) in international economic law cannot be relegated to the back end of issues of treaty interpretation and treaty application in world trade law disputes or investor-State arbitrations, but rather, should operate as an inbuilt constraint for States when bargaining the terms of their international economic agreements in the first instance.  When negotiating these international economic agreements, I argued that States have to take into account: 1) the impact of treaty commitments on States’ social protection baselines under the ICESCR (“minimum core obligations”); 2) how the new treaty will affect the future ability of the State to progressively realise ICESCR rights, given the State’s continuing non-retrogression obligations under the ICESCR; 3) the model of development chosen by the State and how it will impact the State’s legal and/or constitutional duties to its citizens to respect, protect, and facilitate ICESCR rights; and 4) whether the design of the dispute resolution mechanism in the international economic agreement preserves the State’s present and future capacity and authority to respect, protect, and facilitate ICESCR rights – including questions of whether there are sufficient ‘exit’ and ‘voice’ mechanisms for local communities impacted by trade and investment operations; meaningful and not mere token participation in monitoring and oversight by all impacted constituencies; and sufficient broadening of the sources of information that either affect the investor’s risk and return calculus with respect to the host State of investment, or that which would affect the exporting firm’s regulatory expectations about the importing country.

Current trends in reforming international economic agreements thus far reveal a kind of “policy of accommodation” for the ICESCR or other human rights obligations that depend more on dispute resolution for application and interpretation.  To this end, more agreements seek to include provisions maintaining compliance with labor and environmental agreements (see for example Articles 12 and 13 of the 2012 US Model BIT), without being altogether clear about the legal consequences (e.g. no breach, excused breach, or mitigated liability, among others) for a host State that purposely breaches an investment protection standard in order to maintain compliance with such labor and environmental agreements. The Canada-European Union Trade Agreement/CETA Investment Chapter  Article 8.9 arguably does a better job at clarifying what these precise legal consequences are when a State commits otherwise investor-injurious acts pursuant to its right to regulate, but even this treaty is pending challenge at the European Court of Justice, due to France’s concerns over environmental and health impacts, as well as Belgium’s objections over the supposed impact of CETA’s investor-State arbitration process on States’ rights to regulate.

It may be inherently futile to rely on such a strategy of ex post interpretation by international economic tribunals to implement international human rights law into international economic agreements.  This cannot be better illustrated than in the apparent stasis of investor-State arbitration, which still dichotomises treaty obligations (presumably binding only States) and contract obligations (supposedly the only mode of binding investors). While recent arbitral awards such as Urbaser v. Argentina (ICSID Award of 8 December 2016) have significantly recognised broad sources of international human rights law from the Universal Declaration of Human Rights to customary norms as (somehow) possible relevant rules for investment treaty interpretation under Article 31(3)(c) of the Vienna Convention on the Law of Treaties, thus far it appears that arbitral tribunals are reluctant to conclude that investors are directly bound by ICESCR or other human rights obligations in a manner that should affect how they perform their contract obligations.  As the Urbaser v. Argentina tribunal stressed: 

“…..While it is thus correct to state that the State’s obligation is based on its obligation to enforce the human right to water of all individuals under its jurisdiction, this is not the case for the investors who pursue, it is true, the same goal, but on the basis of the Concession and not under an obligation derived from the human right to water.  Indeed, the enforcement of the human right to water represents an obligation to perform.  Such obligation is imposed upon States.  It cannot be imposed on any company knowledgeable in the field of provision of water and sanitation services.  In order to have such an obligation to perform applicable to a particular investor, a contract or similar legal relationship of civil and commercial law is required.  In such a case, the investor’s obligation to perform has as its source domestic law; it does not find its legal ground in general international law…” (Urbaser v. Argentina Award of 8 December 2016, para. 1210.  Emphasis added.).

This view – where international human rights law appears detached from having any direct applicability to investors  – echoes similar reasoning from that of the 2010 Decision on Liability in Suez v. Argentina:

“…Argentina and the amicus curiae submissions received by the Tribunal suggest that Argentina’s human rights obligations to assure its population the right to water somehow trumps its obligations under the (bilateral investment treaties or BITs) and that the existence of the human right to water also implicitly gives Argentina the authority to take actions in disregard of its BIT obligations.  The Tribunal does not find a basis for such a conclusion either in the BITs or international law.  Argentina is subject to both international obligations, i.e. human rights and treats obligation, and must respect both of them equally. Under the circumstances of these cases, Argentina’s human rights obligations and its investment treaty obligations are not inconsistent, contradictory, or mutually exclusive.  Thus, as discussed above, Argentina could have respected both types of obligations…” (Suez v. Argentina Decision on Liability of 30 July 2010, para. 262.  Emphasis added.)

The unique genius and foresight behind the Committee’s General Comment No. 24 lies with how it achieves comprehensive internalisation of the ICESCR – by embedding the ICESCR in every step of States’ regulation of the conduct of business activities, trade, and investment, and in a manner more markedly direct than those sought through voluntary corporate social responsibility instruments (such as the UN Global Compact, Equator Principles, UN Principles on Responsible Investment, among others).  General Comment No. 24 provides for modes of attribution of direct State responsibility for the action or inaction of business entities (whether State-owned or privately owned enterprises).  It already anticipates that there will be direct treaty conflicts between the ICESCR and IEL, such that States should, accordingly as a matter of routine practice, conduct human rights impact assessments long before concluding trade and investment treaties, and States should also require business entities to conduct extensive human rights due diligence in order to identify, prevent, and mitigate risks of ICESCR violations.  Because the ICESCR is a long-standing treaty binding 165 States Parties and with 5 further signatory States pending ratification of the ICESCR (and thus bound – pursuant to Article 18 of the Vienna Convention on the Law of Treaties – not to defeat the object and purpose of the ICESCR), the ICESCR constitutes binding international law to hold States to account when they regulate business, trade, and investment activities in ways that are inconsistent with ensuring respect, protection, and facilitation of ICESCR rights. The Committee’s General Comment No. 24 bears significance as an authoritative interpretation of the ICESCR – one that gives States practical guidance on the implementation of the ICESCR in the context of regulating business, trade, and investment activities.  In this sense, perhaps more successfully than the aspirations thus far to arrive at a global treaty on business and human rights based on the Ruggie framework (see Guiding Principles on Business and Human Rights), General Comment No. 24 consolidates much of the previous works of the Committee on these matters into a single authoritative interpretive document. It is precisely this rich blueprint that States and non-State actors can now use to invoke legal constraints inbuilt and guaranteed by treaty under the ICESCR, as States design and plan for the regulation of business, trade, and investment activities.

Scope, attribution, and extraterritoriality of acts of business entities and States’ ICESCR duties

General Comment No. 24 makes clear that the ICESCR applies to all business activities – transnational, State-owned or State-controlled, or privately-held – “regardless of whether domestic laws exist or are fully enforced in practice.”  (General Comment, para. 5)  States continue to possess extraterritorial obligations to ensure respect, protection, and facilitation of ICESCR rights.  States’ fundamental duty of non-discrimination requires them to eliminate formal as well as substantive forms of discrimination by non-State entities, including groups disproportionately affected by the adverse impacts of business activities such as women, children, indigenous peoples, disabled persons, constituencies such as peasantry and rural workers impacted by the development, utilisation, or exploitation of lands and natural resources. (General Comment, paras. 7-8)

Most importantly, the Committee finds that States parties to the ICESCR may be held directly responsible for the action or inaction of business entities:

“…(a) if the entity concerned is in fact acting on that State party’s instructions or is under its control or direction in carrying out the particular conduct at issue, as may be the case in the context of public contracts;

(b) when a business entity is empowered under the State party’s legislation to exercise elements of governmental authority or if the circumstances call for such exercise of governmental functions in the absence or default of the official authorities; or 

(c) if and to the extent that the State party acknowledges and adopts the conduct as its own.” (General Comment, para. 11.)

The Committee explicitly points out that “extraterritorial obligations arise when a State party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus man contribute to the effective enjoyment of economic, social, and cultural rights outside its territory.” (General Comment, para. 28) This can include duties on the part of States not to obstruct fellow State parties from complying with their ICESCR obligations, such as when negotiating trade and investment agreements or financial and tax treaties (General Comment, para. 29); duties of States to take reasonable measures to prevent breaches caused by a private entity’s conduct especially in high-risk projects such as those in mining and the extractive industries (General Comment, para. 32); or to directly require corporations to “deploy their best efforts to ensure that entities whose conduct those corporations man have influence, such as subsidiaries…or business partners…respect Covenant rights” (General Comment, para. 33).

Trade and investment treaty-making, business supply chain regulation must be ICESCR-compliant

The Committee also expressly places the obligation on States to ensure that any trade and investment treaties subsequently entered into after the ICESCR must ensure the former’s consistency with the latter:

“States parties should identify and potential conflict between their obligations under the Covenant and under trade or investment treaties, and refrain from entering into such treaties where such conflicts are found to exist, as required under the principle of the binding character of treaties.  The conclusion of such treaties should therefore be preceded by human rights impact assessments that take into account both the positive and negative human rights impact of trade and investment treaties, including the contribution of such treaties to the realisation of the right to development.  Such impacts on human rights of the implementation of the agreements should be regularly assessed, to allow for the adoption of any corrective measures that may be required.  The interpretation of trade and investment treaties currently in force should take into account the human rights obligations of the State, consistent with Article 103 of the Charter of the United Nations and with the specific nature of human rights obligations.  States partiescannot derogate from the obligations under the Covenant in trade and investment treaties that the may conclude…” (General Comment, para. 13).

The Committee further extends the obligation to ensure respect for the ICESCR and protection of ICESCR rights to downstream operations of the business supply chain, including broader consultation with affected indigenous communities:

“…a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent, and mitigate the risks of violations of Covenant rights, to avoid such rights being abused, and to account for the negative impacts caused or contributed to by their decisions and operations and those of entities they control on the enjoyment of Covenant rights.  States should adopt measures such as imposing due diligence requirements to prevent abuses of Covenant rights in a business entity’s supply chain and by subcontractors, suppliers, franchisees, or other business partners…businesses should consult and cooperate in good faith with the indigenous peoples concerned through indigenous peoples’ own representative institutions in order to obtain their free, prior and informed consent before the commencement of activities…” (General Comment, paras. 16-17)

Corruption is particularly anathema to the realisation of ICESCR rights, and “leads to the discriminatory access to public services in favour of those able to influence authorities, including by offering bribes or resorting to political pressure…” (General Comment, para. 20.).  While privatisation of traditionally public sectors such as water, electricity, education, or health care “is not per se prohibited” (General Comment, para. 21), States should “retain at all times the obligation to regulate private actors to ensure that the services they provide are accessible to all, are adequate, are regularly assessed in order to meet the changing needs of the public and are adapted to those needs.” (General Comment, para. 22).  Intellectual property rights systems must also “recognise and protect the right of indigenous peoples to control the intellectual property over their cultural heritage, traditional knowledge, and traditional cultural expressions.” (General Comment No. 24, para. 24).  States should also reject impunity for tax evaders who ultimately undermine State capacities to realize Covenant rights: “States should combat transfer pricing practices and deepen international tax cooperation, and explore the possibility to tax multinational groups of companies as single firms, with developed countries imposing a minimum corporate income tax rate during a period of transition.  Lowering the rates of corporate tax solely with a view to attracting investors encourages a race to the bottom that ultimately undermines the ability of all States to mobile resources domestically to realize Covenant rights…”(General Comment, para. 37).

Remedies against Corporate Veil Defences and Corporate Forum Shopping in Transnational Litigation

Finally, the Committee takes note of the unique (and nearly insurmountable) obstacles faced by individual victims of transnational corporate abuses in seeking to access effective remedies, whether from corporations successfully invoking the corporate veil defence or taking advantage of forum non conveniens doctrines.  The Committee observes that States parties to the ICESCR are “require(d)…to remove substantive, procedural, and practical barriers to remedies, including by establishing parent company or group liability regimes, providing legal aid and other funding schemes to claimants, enabling human rights-related class actions and public interest litigation, facilitating access to relevant information and the collection of evidence abroad, including witness testimony, and allowing such evidence to presented in judicial proceedings…States parties should facilitate access to relevant information through mandatory disclosure laws and by introducing procedural rules allowing victims to obtain the disclosure of evidence held by the defendant.” (General Comment, paras. 44-45).  The Committee contemplates that corporate accountability for violations of ICESCR rights can span “criminal liability of corporations and/or of the individuals responsible…administrative sanctions to discourage conduct by business entities that lead, or may lead, to violations of the rights under the Covenant….in public procurement regimes, denying the award of public contracts that have not provided information on the social or environmental impacts of their activities or that have not put in place measures to ensure that they act with due diligence to avoid or mitigate any negative impacts on the rights under the Covenant…” (General Comment, paras. 49-50).  Remedies may also be judicial or non-judicial, in keeping with the particular nature of the harm caused to the individual or group victim of corporate conduct that violates ICESCR rights.  (General Comment, paras. 51-57).

Conclusion

I readily expect that, as with most of the Committee’s General Comments, States will plead latitude during their respective periodic reviews before the Committee with respect to observing the Committee’s recommendations in General Comment No. 24.  That does not, by itself, detract from the ultimate value of these General Comments to current and future policymakers, practitioners, and scholars of international human rights and international economic law.  Indeed, many of the Committee’s General Comments anticipated later treaty developments in labor rights protections, education, and access to health care, gaining resonance in international practice much later than when the General Comments were first issued.  I venture to predict that General Comment No. 24 will follow a similar path.  While this blueprint might be read by some States now as controversial overreaching into their sovereign prerogatives to regulate their domestic economies, the Committee must be credited with taking the bold path of establishing the clear legal nexus between the ICESCR as a treaty binding 165 States to respect, protect, and facilitate economic, social and cultural rights – as well as this treaty’s simultaneous role as a legal constraint on all of these States’ parameters of authority to regulate, plan, and make economic decisions.  More importantly, this treaty-based legal nexus also substantiates the urgent need for direct epistemological, educational, and interdisciplinary linkages between international human rights law and international economic law communities of scholars, practitioners, and authoritative decision-makers.  Finding real solutions to transnational corporate abuses, and devising effective innovations to ensure the implementation of economic, social, and cultural rights, certainly now requires competent engagement from both ends of the public-private spectrum in international law.

The MERCOSUR Protocol on Investment Cooperation and Facilitation: regionalizing an innovative approach to investment agreements

Tue, 09/12/2017 - 07:47

The States Parties of the MERCOSUR (Argentina, Brazil, Paraguay and Uruguay) signed in April 2017 the Protocol on Investment Cooperation and Facilitation (“MERCOSUR Protocol”).

As discussed in this post, the Protocol draws significantly on the Brazilian model investment agreement (the Agreement on Cooperation and Facilitation of Investments – ACFI), which stands out for departing from the traditional design of Bilateral Investment Treaties (BITs), particularly – but not only – by excluding the possibility of investor-State dispute settlement (ISDS).

The emergence of the MERCOSUR Protocol has implications at the level of investment policy, as it represents a step towards the regionalization of the Brazilian model. It reflects the attempt to include in a single document the realities of four countries with important political, economic and investment policy differences, as expressed by the varying trajectories of Argentina and Brazil in the investment area.

It also raises interesting questions from an international law perspective. It highlights the legal challenges faced by Brazil, which not only joined the network of international investment agreements (IIAs) as a late-comer but also opted for embracing a particular approach to investment treaties. Accordingly, aside from provisions that innovate in investment law-making, the MERCOSUR Protocol incorporates provisions whose intention seems to be to insulate Brazil from applying protection standards often found in the over 3,000 treaties that now comprise the network of BITs, but which have been deliberately absent in the ACFI.

The regionalization of the Brazilian model of investment agreement

The recently signed MERCOSUR Protocol represents the second attempt by the South American trading bloc to agree on a regional discipline for investments. A first attempt took place in 1994, when its States Parties adopted two protocols that provided for BIT-like protection and ISDS mechanisms, one covering investors from MERCOSUR (“Colonia Protocol”) and another investors from outside the bloc (“Buenos Aires Protocol”). None entered into force and were later ‘derogated’.

By drawing inspiration on the current Brazilian approach to investment law-making, the MERCOSUR Protocol differs considerably from the two previously drafted instruments.

Brazil stands out for being one of the major economies never to have ratified a BIT in the traditional sense. Even though it negotiated BITs in the 1990s, these treaties had their domestic approval process discontinued in the face of opposition in the Brazilian Congress.

When Brazil did decide to join the network of IIAs, this was done based on a model that departs significantly from the traditional design of BITs as it incorporates the following features: (i) emphasis on investment facilitation and dispute prevention; (ii) national treatment and most-favored nation, subject to a number of limitations; (iii) encouragement of sustainable development and corporate social responsibility practices by foreign investors; (iv) State-to-State dispute settlement; and (v) exclusion of standards such as “fair and equitable treatment” (FET), “full protection and security” (FPS), and protection against indirect expropriation.

The MERCOSUR Protocol is the eighth investment agreement signed by Brazil under its model. While the core features of the ACFI outlined above pervade all the agreements signed so far, the more recent treaties are in many ways more detailed and wider in coverage.

The first ACFIs, signed with African countries in 2015 (Angola, Mozambique and Malawi, in chronological order), can be distinguished by essentially laying down the core elements of the ACFI. A second approach can be discerned in the agreements signed subsequently with Latin American countries (Mexico, Colombia, Chile and Peru), which follow the template of the ACFI, but add, among others, a wider range of regulatory carve-outs (including a clause of non-precluded measures into some of these ACFIs), a provision on the fight against corruption and illegality, detailed regulation of arbitration, as well as clarifications to a number of provisions. A third approach could be underway, with an agreement between Brazil and India possibly emerging in the near future.

The MERCOSUR Protocol follows to a great extent the Latin American approach, although it also introduces provisions not found in previous ACFIs, as examined in the next section.

But the MERCOSUR Protocol also innovates by regionalizing the Brazilian model: while the other MERCOSUR countries are Parties to traditional BITs – and Argentina also has a background of no less than 60 investment disputes -, by signing the Protocol Argentina, Paraguay and Uruguay have decided to discipline the relations amongst themselves based on this model.

The Protocol also borrows the existing MERCOSUR dispute settlement mechanisms, which includes a permanent appeal jurisdiction (see below). In so doing, it marks a step in the institutionalization of investment dispute settlement, a topic that stands at the core of current discussions on the IIA reform.

The provisions of the MERCOSUR Protocol

Most of the features of Brazilian ACFIs are found in the MERCOSUR Protocol, although it also adds provisions or commitments not found in some of the previous ACFIs, such as:

– The definition of “investment” (Article 3.3) includes “the commitment of capital, the objective of establishing a lasting interest, the expectation of profit or utility and the assumption of risks”, a wording which implies expressly including objective criteria to that concept.

– The substantive provisions include “access to justice” and “due process” (Articles 4.1 and 4.2), which generally do not appear in the other ACFIs.

– The Protocol also includes an article relating to the “obligations of investors” (Article 13), using language similar to a provision appearing in the recent Qatar-Argentina BIT. However, unlike this latter treaty, the MERCOSUR Protocol excludes this provision from the dispute settlement clause.

Also in line with prior ACFIs, the Protocol puts forward the institutional layout for the main rationales of the ACFI – cooperation and investment facilitation – by establishing national investment “Focal Points or ‘Ombudsmen’” as well as procedures for “dispute prevention”.

The disciplines governing the settlement of disputes are also worthy of notice as they resort to the 2002 MERCOSUR Olivos Protocol for the Settlement of Disputes. The procedures set out therein include direct State-to-State negotiations (Article 4), intervention by the MERCOSUR’s (diplomatic level) Common Market Group (Articles 6-9), and ‘ad hoc’ State-to-State arbitration (Articles 9-16). Interestingly, the Olivos Protocol provides for a permanent review procedure (Articles 17-22) as well as a procedure for claims submitted by (natural and legal) private persons (Articles 39-44).

Clarifying state practice and opinio juris? Explicit exclusion of the application of FET, FPS and indirect expropriation

Since the first ACFI, Brazil has consistently rejected standards found in traditional BITs, such as FET, FPS and indirect expropriation.

Yet, while the ACFIs signed with African countries simply ignored these provisions, the Brazilian agreements with Latin American countries adopt a more active dismissal of such standards (e.g., Colombia – Article 5.3(b) – and Chile – Article 6.3(b) -, excluding from dispute settlement those standards agreed with a third Party).

The MERCOSUR Protocol goes in this same direction, but innovates in the acquis of the ACFIs by explicitly rejecting from its scope the standards of “fair and equitable treatment” and “full protection and security” (Article 4.3).

The Protocol also expressly excludes the protection against indirect expropriation (Article 6.6), in a language similar to that found in the agreements with Chile (Article 7.5) and Peru (Article 2.7.6). In contrast, the provisions on expropriation included in the first ACFIs were silent on indirect expropriation.

These “ring fencing” provisions seem directed to interpreters of the MERCOSUR Protocol. After all, although the ACFIs provide for State-to-State dispute settlement, measures adopted by Brazil (as well as the other MERCOSUR Parties, for this matter) might be subject to the scrutiny of an arbitral tribunal – or the MERCOSUR Permanent Appeals Court.

Therefore, in a moment when some actors are resorting to provisions that clarify the content of open-textured concepts such as “fair and equitable treatment” (e.g. Article 9.6 of the TPP investment chapter), Brazil has been spelling out in increasingly detailed terms, as it signs ACFIs, that it does not intend to see standards such as these applied to it – be it through the channel of customary law, MFN clauses or by whatever means of treaty interpretation.

A question open for discussion is what effects, if any, do these provisions entail for the other MERCOSUR States, which have concluded numerous BIT including FET and FPS without similar carve-outs. The extended use of the phrase “for greater certainty” could suggest that the intention of the contracting Parties was in part to clarify provisions that appear in other IIAs.

The MERCOSUR Protocol and the reform of IIAs

The Protocol might suggest a broader trend is underway. It points to a scenario where countries operate with different geometries with respect to the formats of their investment agreements. In the immediate case, countries holding significant portfolios of traditional BITs opted for signing up to an agreement that significantly differs from the BIT.

Should countries be expected to follow one and only approach to investment law-making? The answer so far appears to be negative, since countries that have negotiating ACFIs with Brazil keep on concluding traditional BITs.

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The views and opinions expressed in this text are the sole responsibility of the authors and do not necessarily reflect the positions of the governments of Argentina and Brazil.

 

 

 

In Memoriam: Frits Kalshoven

Mon, 09/11/2017 - 08:05

The world has lost one of its greatest international humanitarian law scholars.

On Wednesday 6 September 2017, at the respectable age of 93, emeritus professor Frits Kalshoven passed away. Professor Kalshoven was one of the most well-known and respected international humanitarian law (IHL) scholars, but above all, he was a very kind, warm and humble person – insisting, for example, to always be addressed by his first name. He was a mentor on IHL for us, as he has been to so many. Indeed, for years, the first introduction to IHL for many students was his book “Constraints on the Waging of War”.

Frits began his career as an officer in the Royal Dutch Navy (1945-1967). During his service, he studied law in Leiden. After completing his studies in 1958, he taught law, including IHL, at the Royal Naval Academy. When he left the navy, he joined the law school of Leiden University, where he wrote his PhD on belligerent reprisals (1971), the publication of which is still regarded the standard work on this topic (and which was reprinted in 2005). Between 1975 and 1989, he held the Red Cross Chair in IHL at Leiden University and subsequently was a professor at Groningen University (1999-2002), before returning to Leiden as professor emeritus. As a member of the Dutch delegation, he negotiated, and was one of the drafters, of the 1977 Additional Protocols; and the Certain Conventional Weapons Convention of 1980.

Frits had an enormous passion for IHL. Although he gave his valedictory lecture in 1989 in Leiden, he never really actually retired, but rather continued to be actively involved in the humanitarian law field, helping to shape and develop it. Besides teaching full courses and guest lectures at various universities, he was the first Chairman of the UN Commission of Experts to investigate serious violations of IHL in the Former Yugoslavia (1992-1993), and was a member and president of the International Humanitarian Fact-Finding Commission (1991-2001). He was a long-term Advisor to the Board of the Netherlands Red Cross (1971-1993), and after that always ready to support its IHL department with advice and contributions to its events. Until the very last moment, he continued to attend international law events to engage with other scholars and practitioners, in nearby The Hague, but also in San Remo.

He published widely on IHL and other matters of public international law. A little known fact is that Constraints on the Waging of War was based on the materials he wrote for his IHL class at the naval academy, afterwards first published in Dutch, before converting it for the ICRC into the “Introduction to international humanitarian law” – and since then updating it (together with Liesbeth Zegveld) to its current 4th edition. In 2007, some of his extensive writing was collected in the 1100 page Reflections on the Law of War, but also afterwards, he continued writing (and publishing even last year) – as well as pursue other interests, such as taking up playing the violin at age 85.

Despite his knowledge and reputation, he was a humble person, always ready to guide and mentor young international lawyers with an interest in IHL. The Netherlands Red Cross honoured him by naming the yearly Dutch and Belgian IHL competition after him at the completion of the first edition in 2008. He was proud to have such an event named after him while still alive and well, and was visibly moved when we went to his house to ask him for permission to use his name for the competition – only feeling more comfortable with the idea when he was reminded that Jean Pictet had a worldwide competition named after him while alive. He tried to attend the finals of the competition every year, awarding the students their prizes. He similarly expressed his deep gratitude for the honour of having the Kalshoven-Gieskes Forum on International Humanitarian Law named after him by Leiden University. This forum’s goal, namely to enhance the protection of persons in times of armed conflict, by research and education, matches Frits’s endeavours perfectly.

In 2003, Frits was awarded the Henri Dunant Medal, the highest distinction of the International Red Cross and Red Crescent Movement, for his continued effort to improve the knowledge of and respect for the law of war and to his work in promoting the Fundamental Principles and ideals of the Red Cross/Red Crescent Movement; a moment that he truly cherished.

On the occasion of receiving that prize, at the end of 2003, he reflected on the wars of the 1990ies, 11 September 2001 and attacks such as those on the UN and ICRC Headquarters in Bagdad. He recalled that the 27th International Red Cross and Red Crescent Conference in 1999 had chosen as its motto “The power of humanity”, but that the vulnerability of humanity had since become painfully clear. He therefore ended his thank you words, with the wish that in spite of its vulnerability, humanity, as the most fundamental principle of the International Red Cross and Red Crescent Movement, would nonetheless prevail in the future.

In 2015, Frits was finally awarded the San Remo Prize for the Promotion, Dissemination and Teaching of International Humanitarian Law. The award was given within the framework of the 38th Round Table on “The Relationship between IAC and NIAC: Challenges for IHL?”, in recognition of his “outstanding and tireless commitment to International Humanitarian Law, as well as for his exceptional contribution to its development through his ever-active involvement with international humanitarian bodies and to its dissemination through his scholarly writings and teaching activities.”

In the preface to his collected works, he wrote in 2007: “I was educated in the civil law tradition, with a heavy accent on the written law and its history. […] [I]n my work on IHL the second half of the nineteenth century has come to figure as my starting-point. I have always been, and remain, convinced of the need to be aware of, and honour, the element of historical continuity in the “reaffirmation and development” of the laws of war.” With a career in IHL that spans more than half a century, he himself has become part of the history of IHL, being involved in the development through treaties and clarification through scholarship, always tirelessly striving to enhance the protection of victims of armed conflicts. It is therefore fitting that he completed his impressive publication record last year with a chapter on “The History of International Humanitarian Law Treaty-Making”.

Rest in peace, Frits.

Announcements: ILA British Branch Conference; Revista Latinoamericana de Derecho Internacional

Sun, 09/10/2017 - 10:00
1. ILA British Branch Conference. This year’s conference will take place on September 22 and 23 at the offices of Clifford Chance. With the theme New International Order in an Isolationist World the conference will address the pressing challenges faced by international law in the political and economic climate prevailing in many regions of the world. These include the challenges caused by rising populism in Europe and North America and reactions against free trade and economic interdependence, manifested most obviously in the Brexit referendum and policies advocated by President Trump, the changing foreign policies of many countries towards military and diplomatic intervention in politically unstable regions and the flows of refugees into Europe, the role of international criminal law in the modern world along with the challenges faced by the International Criminal Court, and the increased scrutiny of the legitimacy of investment treaty arbitration, whether as a standalone system or as an aspect of mixed trade and investment agreements. The conference will begin with a keynote address from Ben Emmerson QC, UN Special Rapporteur on Counter-Terrorism and Human Rights followed by six panels covering the following topics: peace and security; human rights and international humanitarian law; international trade law; international investment law; regionalism; and accountability and remedies under international law, and will include selected speakers drawn from private practice, the public sector and academia in order to incorporate diverse perspectives, both theoretical and practical, on the conference theme. To view the conference programme and to register see here. 2. New Issue: Revista Latinoamericana de Derecho Internacional. The fifth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. LADI’s sixth issue includes a special dossier on history and human rights, featuring articles by Samuel Moyn, Juan Pablo Scarfi, Lynn Hunt Stefan-Ludwing Hoffmann, and María Inostroza, along with an interview with Professor Dino Kritsiotis. The latest issue can be found here.

New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

Thu, 09/07/2017 - 10:18

In this latest episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Niels Petersen of the University of Münster, whose article, “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”, appears in Volume 28, Issue 2 of the journal.

In the article, Professor Petersen explores International Court of Justice decisions confirming the existence of customary international law.  The abstract of the article states that:

It is often observed in the literature on customary international law that the identification practice of the International Court of Justice (ICJ) for customary norms deviates from the traditional definition of customary law in Article 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

The EJIL:Live! discussion focuses on the principal empirical findings of the article, and Petersen’s novel conceptualization of those arguments in terms of “judicial politics”, explicable by the institutional constraints that the Court faces. This conversation offers a reflection on how this assessment of the jurisprudence could alter scholars’ normative conceptions of the Court’s decisions, particularly in regards to customary international law.

 

International Law or Comity?  Exploring whether Grace Mugabe can successfully claim immunity for crimes committed on foreign soil.

Mon, 09/04/2017 - 08:00

Background Facts

On 14 August 2017 various news sites reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman. A court hearing to obtain a statement from Mrs Mugabe was scheduled for the 15th but she failed to appear. On the evening of the 16th the Government of Zimbabwe directed a note verbale to the South African government invoking diplomatic immunity on her behalf and stating that Mrs Mugabe’s itinerary in South Africa included amongst private matters her attendance and participation at the scheduled SADC Heads of States/Governments Summit and other Bi-lateral Diplomatic Meetings.

The question which has gripped lawyers and laymen alike is whether or not Mrs Mugabe can successfully claim any kind of immunity under international law to shield herself from arrest and prosecution.  Media reports asserted that Mrs Mugabe claimed “diplomatic” immunity”. However, as the spouse of a sitting Head of State, ordinarily resident in Zimbabwe, Mrs Mugabe cannot be considered a diplomatic agent and is not entitled to the protections afforded under the Vienna Convention on Diplomatic Relations (VCDR). Customary international law also confers personal immunity on some state officials. This personal immunity is extensive in scope, and wide enough to cover both official and private acts by heads of state, heads of government and foreign ministers as the Arrest Warrant Case  points out. As Mrs Mugabe does not fall within any of the categories above, she cannot claim personal immunity. In addition, customary international law accords, functional immunity in relation to acts performed in an official capacity. This immunity covers the official acts of all state officials and of those who act on behalf of the state.  It is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. However, the alleged assault by Mrs Mugabe was not undertaken in the performance of any official duty and functional immunity is unavailable in relation to that act.

This post considers whether the Mrs Mugabe may have been entitled to immunity, while in South Africa, as the spouse of a head of state. The post first considers whether the spouse of a representative to SADC, an international organization, may be entitled to immunity. It then explores the immunity of family members of state officials on special missions and of heads of states.

Could She Have Immunity Through Participation at the SADC Summit?

The SADC Protocol on Immunities and Privileges sets out the immunities which attach to SADC, its institutions and staff.  Article 6 thereof provides that representatives of Member States to the institutions of SADC and to conferences convened by SADC shall, while exercising their functions and during their travel to and from the place of the meeting, enjoy immunities and privileges, which include inviolability of person and property. Article 6(4) defines “representatives” as including all delegates, deputy delegates, advisors, technical experts and secretaries of delegations. It is important to note that Article 6 does not set out immunities for spouses and other family members of representatives, unlike other articles in the protocol such as Article 5 which expressly provides for the immunity of the families of SADC Officials. Thus, it is arguable that it was not the intention of the drafters to extend this immunity to family members.

Further, despite the Zimbabwean government claiming that she was a participant at the SADC Summit, Mrs Mugabe cannot be considered a “representative” for purposes of Article 6. The office of the First Lady is not formally established in terms of the Constitution and she cannot purport to represent the interests of the country at intergovernmental meetings.

Could She Have Special Mission Immunity as a Family Member?

The Government of Zimbabwe stated that Mrs Mugabe had a dual mission, i.e. attending the SADC Summit as well as other ‘bi-lateral meetings.’ Such a bi-lateral mission would be covered under the Convention on Special Missions (the Convention), which defines a special mission as a “temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task.” However, the question of whether the facilities, privileges and immunities of special missions have a basis in law or whether they are accorded merely as a matter of courtesy has not been fully settled under international law.

Under the Convention the status of special missions approximates that of permanent missions under the VCDR. The Special Missions Convention recognises privileges and immunities as a matter of law, in accordance with the views expressed International Law Commission consistently since 1958. Thus, under this Convention, States are under an obligation to accord such privileges to delegates to special missions and their family members. Article 39 of the Convention recognises the immunity of family members accompanying persons on state business. These immunities include personal inviolability and inviolability of private accommodation. The Netherland’s Advisory Committee On Issues Of Public International Law, notes that ‘although the sources are few and far between…it safe to conclude that family members of a head of state… who accompany the person concerned during an official visit… enjoy the same immunity as a state official on an official mission.

Despite this proclamation, the position stated in the Convention is not uniformly accepted, and there is a view that on the contrary, the immunities of special missions under customary international law are less extensive than those accorded to permanent diplomatic missions. This lack of unanimity is perhaps why only 38 states are parties to the Convention. As Nadia Kalb (“Immunities, Special Missions” in the Max Planck Encylopedia of Public International Law, para. 4)  observes, even among parties, routine visits of official negotiators or experts are often not given the status of special missions since States are reluctant to accept that missions always need privileges and immunities as extensive as required by the Convention.

Comity or Law?

Writing in 2008 in his capacity as the International Law Commission’s Special Rapporteur on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, Roman Kolodkin stated that, in both doctrine and practice, there are much more solid grounds for stating that the source of the immunity from foreign jurisdiction of members of the family of senior officials is not international law but international comity. In 1967, the Special Rapporteur on Special Missions (Milan Bartos) similarly observed that:

Although the dispatch of special missions and itinerant envoys has been common practice in recent times…they have no firm foundation in law…The rules of law relative to ad hoc diplomacy and the sources from which they are drawn are scanty and unreliable. (para. 114)

However, there is a school of thought that that since 1967, the Convention has impacted the development of customary international law, and at present, it can now be considered a reflection of the true status of international law. As Sir Michael Wood observes in a recent article:

The elaboration of the Convention [has] had a major impact on the development of rules of customary international law;  While it cannot be said that all – or even most – of the provisions of the Convention reflected customary international law at the time of its adoption, it is widely accepted that certain basic principles, including in particular the requirement of consent, and the inviolability and immunity from criminal jurisdiction of persons on special missions, do now reflect customary law.

Despite this assertion, it is contended that state practice is too irregular and inconsistent to definitively state that the provisions of the Convention has attained the status of customary international law. While it is not possible to discuss domestic case law at length in a work of this nature, a few samples will illustrate.

In Kilroy v Windsor, a claim of immunity in favour of the Prince of Wales was upheld. In the Freedom and Justice Party case, the High Court of Justice held that “customary international law requires a receiving State to secure, for the duration of a special mission, personal inviolability and immunity from criminal jurisdiction for the members of the mission accepted as such by the receiving State.” In Marcos et Marcos, the Swiss Federal Tribunal recognized the immunity of the wife of the former President of the Philippines, noting that customary international law has always granted to Heads of State, as well as to the members of their family, the privileges of personal inviolability and immunity from criminal jurisdiction.

Conversely in R v Governor of Pentonville Prison, ex parte Osman, special mission immunity was denied and the Vice Marshal of the Diplomatic Corps stated that the United Kingdom was not a party to the CSM and did not regard that convention as declaratory of customary law. Likewise in United States of America v Sissoko, Moore J held Court held that the CSM did not bind the court, and that there was some resistance to the tenets of the convention such that it is not yet “customary international law”

However, even on this point, Mrs Mugabe cannot be deemed to be immune from arrest and prosecution. In its ordinary grammatical meaning ‘accompany’ means ‘to go somewhere with (someone) as a companion or escort.’ Mrs Mugabe did eventually travel from Johannesburg and join her husband in Pretoria, but it would be fallacious to argue that on 14 August when she committed the assault, she was ‘accompanying’ her husband who was still in Zimbabwe at the time.

She Has No Immunity at All

The claim that Grace was attending the SADC Summit and other bilateral meetings does not provide her with immunity. While the South African government did retrospectively recognise her immunity, the basis for this is certainly not law but comity.

Announcements: Cambridge Asylum and Migration Studies; CfS UCL Journal of Law and Jurisprudence

Sun, 09/03/2017 - 09:00
1. Cambridge Asylum and Migration Studies. Cambridge University Press has launched a new book series: Cambridge Asylum and Migration Studies. The series is now accepting book proposals. At no time in modern history have so many people been on the move as at present. Migration facilitates critical social, economic, and humanitarian linkages. But it may also challenge prevailing notions of bounded political communities, of security, and of international law. The political and legal systems that regulate the transborder movement of persons were largely devised in the mid-twentieth century, and are showing the strains. New challenges have arisen for policymakers, advocates, and decision-makers that require the adaptation and evolution of traditional models to meet emerging imperatives.  This new series aims to be a forum for innovative writing on all aspects of the transitional movement of people. It publishes single or coauthored works that may be legal, political, or cross-disciplinary in nature. The series is edited by a world leader in international refugee law, Professor James Hathaway, University of Michigan. He is supported by an Editorial Advisory Board comprising Alexander Betts, University of Oxford, Vincent Chetail, Graduate Institute of International and Development Studies, Thomas Gammeltoft-Hansen, Raoul Wallenberg Institution of Human Rights and Humanitarian Law, Audrey Macklin, University of Toronto, and Saskia Sassen, Colombia University. Potential authors should contact Finola O’Sullivan at Cambridge University Press, the series editor, or any member of the Editorial Advisory Board 2. UCL Journal of Law and Jurisprudence Call for Submissions. The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the first issue of 2018 (Volume 7, Issue 1 (March 2018)). The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000 – 12,000 words, case notes of 6,000 – 8,000 words and book reviews of 1,000 – 2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 16 October 2017. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website.

A Response: The Child in International Refugee Law

Fri, 09/01/2017 - 08:00

I am grateful to each of the participants for engaging with The Child in International Refugee Law in such a thoughtful way.

As all four contributions have identified, the central thesis of The Child in International Refugee Law is that the the Convention on the Rights of the Child (“CRC”) has a critical role to play, alongside the 1951 Refugee Convention, in enhancing the visibility and protection afforded to refugee children. Rather than simply asserting a need for greater interaction between the 1951 Refugee Convention and the CRC, the book attempts to map out the substantive contours of that relationship, and to anchor the relationship in the international rules of treaty interpretation.

In his contribution, Bjorge engages with the book’s treatment of the international rules of treaty interpretation, and in particular the argument developed in Chapter 1 that these rules should be drawn upon to promote greater engagement with the CRC as an interpretative aid to inform the interpretation of the 1951 Refugee Convention refugee definition. I agree with everything that he has said. Bjorge agrees, perhaps unsurprisingly (see, e.g. The Evolutionary Interpretation of Treaties (OUP, 2014)), that Articles 31-33 of the Vienna Convention on the Law of Treaties (“VCLT”) require a systemic approach to the interpretation of the 1951 Refugee Convention and that such an interpretative approach is, on the whole, likely to be beneficial for refugee children. However, he raises a sage warning that a systemic approach to treaty interpretation can, particularly in today’s unfortunate political climate, be used opportunistically by States to reduce rather than strengthen the protection afforded by the 1951 Refugee Convention. In these circumstances, says Bjorge, “it may well be that literalism or textual interpretation is rather better than its reputation”.

This is, of course, where the beauty of the constituent elements of Article 31 VCLT, and their inbuilt flexibility, really come to the fore. The adoption of a general, closely integrated rule, underscores the need to look beyond a literal construction of the text, and to consider the terms of the treaty in light of their object and purpose, in their context and taking into account subsequent extrinsic sources. Those extrinsic sources cannot, however, be relied upon to displace the text, or to undermine its object and purpose. This provides an answer to the various attempts by States to rely on extrinsic sources to attempt to limit their otherwise clear obligations under the 1951 Refugee Convention.

The benefits to be derived from drawing upon the CRC as an interpretative aid in interpreting the 1951 Refugee Convention is most clearly illustrated in the context of the “being persecuted” standard. The challenges historically faced by children in satisfy that standard, and the potential for the CRC to provide a framework to assist in responding to those challenges, is addressed in the contributions from Anker (with Kelly and Carrera) and Crock. Both Anker and Crock have been at the forefront of advocating for a child-friendly understanding of the 1951 Refugee Convention, including the “being persecuted” standard; Anker through her cutting-edge work leading the Harvard Immigration Refugee Clinical Program, and Crock through her pioneering scholarship on unaccompanied refugee children.

I endorse, completely, Crock’s argument that determining what constitutes “being persecuted” must be driven by the “attributes, needs and situation of each individual child”, and that in cases of children with disabilities, guidance must also be taken from recent Convention on the Rights of Persons with Disabilities (“CRPD”). Indeed, this is the real value that the specialist treaties provide: they emphasise the importance of not looking at each individual through a monolithic lens. In the context of children, the CRC provides an automatic and principled means for adapting the persecutory threshold to take into account a child’s heightened sensitivities and distinct developmental needs.

In her contribution, Anker suggests that that domestic refugee jurisprudence in the United States is moving (albeit somewhat “haltingly”) towards a “generally internationalist, and more specifically human rights, approach to the interpretation of refugee law”. This is a very welcome development. The United States Citizenship and Immigration Service’s Asylum Officer training manual, cited by Anker, provides a clear illustration of this. Notwithstanding the fact that the United States remains the only country in the world not to have ratified the CRC, the training manual expressly acknowledges the link between the CRC and the “being persecuted” standard, providing a list of the “fundamental rights of children listed in the CRC that may rise to the level of persecution if violated”.

Although in many cases recourse to the generalist human rights treaties, progressively interpreted (e.g., the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) may result in similar protection outcomes for child refugee claims, there is something deeply unsatisfactory about agreeing an international treaty that comprehensively sets out the range of behaviour that States have defined as unacceptable in the context of children, and then failing to have regard to that treaty in applying the “being persecuted” standard to children. The point has been lucidly made by the Federal Court of Canada: “[i]f the CRC recgonizes that children have human rights and that ‘persecution’ amounts to the denial of basic human rights, then if a child’s rights under the CRC are violated in a sustained or systemic manner demonstrative of a failure of state protection, that child may qualify for refugee status”: Kim v Canada (MCI) [2011] 2 FCR 448, [51].

Harvey’s contribution is characteristically perceptive, immediately identifying what sits at the heart of the book: the re-imagining of the relationship between international law on the rights of the child and international refugee law to ensure the widest possible protection for refugee children. Today a refugee lawyer must also be a human rights law. Advocates and decision-makers must test the authentic boundaries of the two regimes, drawing on progressive interpretations of the 1951 Refugee Convention, informed and/or supplemented by the comprehensive framework of rights enshrined in the CRC. To borrow Harvey’s language, there is a need for “creative lawyering”, firmly anchored in “existing normative commitments”, to ensure that “children’s voices will be heard and listened to” and that “processes and practices will change, often radically”. It is hoped that The Child in International Refugee Law can make a modest contribution to that important endeavour.

Review: Jason Pobjoy’s Book, The Child in International Refugee Law

Thu, 08/31/2017 - 14:00

Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).

The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”

The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction.

Over the past 3-5 years, the U.S. has experienced a surge of asylum claims involving children, including unaccompanied children, fleeing the Northern Triangle countries of Honduras, El Salvador and Guatemala, where they face such human rights violations as forced recruitment, killing, rape and other sexual violence by trans-national gangs that have taken effective control over significant parts of these countries. In short, a far larger proportion of claims to U.S. refugee protection are being made by children (and at a time when U.S. advocacy has become more consciously human rights oriented), so the framework and analysis Pobjoy presents may have a significant impact, not only for children seeking protection, but on the development of U.S. refugee law more generally.

In Chapter 4, Pobjoy addresses the term “being persecuted,” presenting a child-rights framework for identifying persecutory harm. He discusses the applicability of the established human rights framework for analyzing persecution in children cases, and argues for a formulation that more fully embraces the rich specificity of rights contained in the CRC and that opens the door for a more principled and less ad hoc jurisprudence in children’s cases. Commentators also ground the concept in human rights. As Goodwin-Gill and McAdam note, “Specific decisions by national authorities are some evidence of the content of the concept, as understood by States, but comprehensive analysis requires the general notion of persecution to be related to developments within the broad field of human rights.” G. Goodwin-Gil and J. McAdams, supra at 91.

The human rights framework for understanding persecution (or the term “being persecuted” in the UN Refugee Convention, Article 1), starts from the premise that the Convention drafters wished to, as Hathaway and Foster argue, “identify forms of harm demonstrative of a failure of state protection” and that human rights law, in particular the International Bill of Rights (IBR) (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), provides the appropriate standard for assessing the minimum duties owed by a state to its citizens. J. Hathaway and M. Foster, supra at 185.

Pobjoy argues that this framework requires elaboration beyond the formative IRB instruments. In the case of children, the CRC strengthens these core IBR rights, and introduces distinct rights more “specifically tailored to the needs and vulnerabilities of children.” Most fundamentally. Pobjoy argues that, in the case of children, the term “being persecuted” (“persecution” in the U.S. definition) must be interpreted in a child-centered age-appropriate manner. Pobjoy describes a typology of harms that children applying for refugee status may present – i.e., harms that are the same as those adults face (e.g., torture, kidnapping, sexual assault), harms that are unique to children (e.g., infanticide, forced child labor), and harms where “the underlying risk is similar or identical for an adult and a child but by reason of a child’s heightened sensitivity and developmental needs the child will suffer a greater degree of harm.” J.Pobjoy at 118. In these cases, the same standard of “being persecuted” will be applied, but a child may more easily be able to satisfy it.

As Pobjoy notes, the U.S. has a particularly rich body of law embracing this age-sensitive approach. The U.S. has issued guidelines (going back to 1998) and more recently training materials for asylum officers (2009) addressing the determination of children’s claims generally, and on age-sensitive assessments of harm, in particular. The 1998 guidelines provide that “[t]he harm a child fears or has suffered . . . may be relatively less than that of an adult and still qualify as persecution.” Immigration and Naturalization Service, Guidelines for Children’s Asylum Claims (Dec. 10, 1998), at 19. On the effect of trauma, the U.S. Citizenship and Immigration Service’s Asylum Officer training manual explains that a child- and age- sensitive approach is necessary “because children, dependent on others for their care, are prone to be more severely and potentially permanently affected by trauma than adults, particularly when their caretaker is harmed.” USCIS, Asylum Officer Basic Training Course, Guidelines for Children’s Asylum Claims 16-17 (2009).

In the seminal First Circuit 2010 decision, Mejilla-Romero v. Holder, 600 F.3d 63 (1st Cir. 2010), 614 F.3d 572 (1st Cir. 2010), (the asylum seeker was represented by Harvard’s clinical program at Greater Boston Legal Services), the court initially upheld and then reversed the agency decision denying asylum, remanding to the agency to apply its own directives regarding interviewing and assessing persecution in children’s cases. In the dissent in the first decision, (which resulted in the court’s reconsidering and then reversing itself), Judge Stahl applied an age and child-centered approach in determining that the harms faced by Celvyn Mejilla-Romera constituted persecution: machete attacks on a young, elementary school child in retaliation for his parents involvement in a land reform movement, where his only protection was from his elderly grandmother, and who became a virtual prisoner in his own home, unable to go to out, even to go to school, as a result of these attacks. See Deborah Anker, Nancy Kelly, John Willshire Carrera, and Sabrineh Ardalan, Mejilla-Romero, A New Era for Child Asylum, (Imm. Briefings, September 2012).

In the February 2012 case of Mendoza-Pablo v. Holder, 667 F. 3d 1308 (9th Cir. 2013), the Ninth Circuit found that the harm to an infant born during the Guatemalan Civil War, including the impact of exposure to ongoing violence, premature birth, severe malnutrition, and continuous fear, constituted persecution. The court referenced its prior decision in Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) which noted, “[t]hree sister circuits have now vindicated a principle that is surely a matter of common sense: a child’s reaction to injuries to his family is different from an adult’s. … [T]he trauma [is] apt to be lasting.” 667 F.3d at1304.

In Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014), another case arising out of the Guatemalan civil war and genocide (and also represented by our clinical program at GBLS), the court found that the combination of circumstances—bombing attacks, permanent injury, the loss of a home, the razing of lands, and internal displacement lasting years—“could certainly support a finding of past persecution for an adult. Such a string of events even more strongly supports a finding of past persecution for a small child, whose formative years were spent in terror and pain.”

In children’s cases, trauma or psychological harm may not only be an aspect of persecution, or indicative of it, but an independent source of persecutory harm. Children’s cases have raised awareness of the role of trauma, and the severity of emotional harm; this has advanced the understanding of trauma and psychological harm as independent bases for a finding of persecution in other cases as well. See Sabrineh Ardalan and Palmer Lawrence, The Importance of Nonphysical Harm: Psychological Harm and Violations of Economic, Social and Cultural rights in U.S. Asylum Law, 14 Immigr. Briefings 1 (September 2014).

Although Pobjoy celebrates these advancements in the understanding of persecution in children’s cases, he notes “a general reluctance” on the part of adjudicators and reviewing courts, to engage with a human rights framework for assessing persecution (at 116). The jurisprudence has developed without benchmarks and with “limited recourse to objective indicators.” Pobjoy argues that adoption of the CRC framework for analyzing persecution is critical if children’s refugee jurisprudence is to develop beyond the current ad hoc approach, which, as rich as it is, in important respects lacks coherency and may provide little guidance in the adjudication of subsequent cases. Pobjoy’s fundamental premise is that the CRC provides the most appropriate focal point for consideration of whether a child is at risk of a form of harm that can be considered persecutory, contexualizing and providing a specificity to a body of rights that while founded in the IRB, has taken on a new life in the CRC. As noted, especially coming at the time it does, Pobjoy’s book may have a particular impact on American advocacy and jurisprudence, as the U.S. increasingly moves (however haltingly) towards a generally internationalist, and more specifically human rights, approach to the interpretation of refugee law.

Persecuting Children: How the Convention on the Rights of the Child has pushed the evolution of refugee law

Thu, 08/31/2017 - 08:00

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement. International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country). Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees. This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Only a child can be at risk of infanticide, underage military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, domestic child abuse, corporal punishment or pre-puberty FGC.

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

In this short reflection, I endorse fully Pobjoy’s argument that it is the Convention on the Rights of the Child (CRC) that has served as game changer for refugee children. At the most obvious level, the CRC and its four associated Protocols set out ‘the range of behaviours that states themselves have defined as unacceptable in the context of children’ (Pobjoy, 123). While Hathaway has used international human rights norms to construct something of a hierarchy of harms to identify persecutory harm (see discussion at 105ff), Pobjoy makes the point that the CRC places equal value on all aspects of children’s rights. He uses this to argue that the treaty ‘provides an automatic and principled means for adapting the persecutory threshold to take into account a child’s heightened sensitivities and distinct developmental needs’(at 123).

My interest is in particular aspects of the CRC that underscore the way in which this convention emphasizes the importance of respect and agency as integers of children’s human rights. In addition to mandating that the ‘best interests’ of the child be a primary consideration in all matters concerning children (Art 3), the Convention enshrines children’s rights to participate in decision making and to freedom of expression and religion (Arts 12 and 14). The twice repeated reference to children’s evolving capacities underscores the idea that children and childhood are not monolithic concepts. Rather, each child is unique, with needs and capacities determined by personal characteristics – and by context. Determining what amounts to the persecution of refugee children should start with the attributes, needs and situation of each individual child.

Acknowledging the significance and role of context is an idea that is adopted and extended in the more recent Convention on the Rights of Persons with Disabilities (CRPD). Article 1 states that:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. [emphasis added]

The practical import of this definition is the acknowledgement that impairments alone do not create disability. Rather, it is the context – namely, the failure to accommodate, to adapt and assist – that creates disability.

The philosophical orientation of this approach aligns strongly with the equality and well-being theories propounded by Amartya Sen (Development as Freedom (Random House, 1999), Martha Nussbaum (Sex and Social Justice (Oxford University Press, 1999) and others (See for example Marcia Rioux et al., Critical perspectives on human rights and disability law (Martinus Nijhoff Publishers, 2011). This ‘capabilities’ approach is adopted in M Crock, L Smith-Khan, RC McCallum and B Saul The Legal Protection of Refugees with Disabilities (London: Elgar Publishing, 2017). Amartya Sen (at 75) represents a natural starting point because of his articulation of two concepts that must combine to achieve human well-being in the context of justice and development. These are the notions of functioning and capability. Functioning describes the mechanical ways that human beings go about their lives. It is what people do and what they want to do and be. Examples include basic things like staying alive, obtaining sufficient nutrition, shelter and access to adequate health care. Functioning also extends to more complex achievements such emotional happiness, pride and self-respect, and participating in social and political activities. The significance of adding ‘capabilities’ to any equation to measure well-being is that functions can be aspirational without the ability to actually put them into practice. In this respect capabilities align with freedom, or with the actual choices and options available to a person given his or her circumstances. Nussbaum (at 34) builds on Sen’s formulation of substantial freedom or ‘capabilities’ in her liberal theory of justice. She characterizes functioning’s as the right to be able to do basic and more complex things in society. Capabilities operate to illuminate what a person is actually able to achieve.

All of this is a rather long-winded way of saying that Pobjoy’s celebration of jurisprudence that adopts a nuanced and contextual approach to harms experienced by refugee children is to be applauded. This book contains a wealth of material distilled through meticulous analysis of case law from around the globe. Together with the website through which he will share the fruits of his doctrinal research, this book is a precious (foundational) addition to what is becoming a burgeoning field of international legal literature. For example, in 2017, Elgar Publishing has commissioned both a Research Handbook on Migrant Children and an edited collection, M Crock and L Benson (eds) Protecting the Migrant Child: Central Issues in the Search for Best Practice.

Treaty Interpretation and The Child in International Refugee Law

Wed, 08/30/2017 - 14:00

Jason Pobjoy explains in The Child in International Refugee Law (CUP 2017) how the rule set out in Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the ‘general rule of interpretation’, in his words, ‘comprises a single holistic “rule” of interpretation’, and that the adoption, by the International Law Commission (ILC),

of a “single, closely integrated rule”’ underscores the need to look beyond a literal construction of the text and to consider the terms of the treaty in light of their object and purposes, in their context and taking into account subsequent extrinsic sources (p 34).

He goes on to explain that this ‘rejection of strict literalism has found favour in domestic refugee jurisprudence’ and then sets out how Articles 31–33 mandate a ‘systemic approach’ to the interpretation and application of the Refugee Convention, with the Convention on the Rights of the Child naturally playing a particularly important role (p 34–43). It is extremely well done.

This approach, clearly and convincingly set out in Chapter 1 of the book, is undoubtedly correct. It is of a feather with the dictum of the International Court of Justice in Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, according to which a treaty ‘does not operate in a vacuum’ but rather ‘in the context of a wider framework of legal rules of which it forms only a part’ (ICJ Rep 1980, p 73, 76, para 10). Against this background, the book in Chapter 6 develops the argument that the Convention on the Rights of the Child is a complementary source of protection for children, going into some detail on state practice to make out the argument.

As the Refugee Convention litigation in domestic courts is becoming increasingly sophisticated over time, we see more and more references to Articles 31–33, counsel and judges drawing nice distinctions between the various means of interpretation and their interplay within the framework of the VCLT rules. As Jason ably demonstrates, such an interpretative approach is not only correct as a matter of the law of treaties: it is also on the whole beneficial for the child in international refugee law.

It is obviously true that, as Jason observes (p 3), children fall within the ambit of the term ‘person’ in the non-child-specific wording of Article 1A(2) of the Refugee Convention; but, as children are different from adults in several regards, particular accommodation must be sought of children for the object and purpose of the Refugee Convention to be given appropriate effect in relation to them. As the book sets out, that type of accommodation can be done through systemic interpretation.

But it is not only arguments on treaty interpretation by counsel for claimants that are becoming more and more sophisticated: as is to be expected, government lawyers, too, increasingly draw on means of interpretation such as ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ (Article 31(3)(b) of the VCLT) and other ‘relevant rules of international law’ (Article 31(3)(c) of the VCLT).

In this context, it may well be that literalism or textual interpretation is rather better than its reputation.

Other relevant rules of international law

From time to time respondents, whether at the domestic or international level, will attempt to push the systemic integration argument too far, by taking their stand on other treaties or rules of customary international law that are said in effect to cancel out the state’s obligation under the initial treaty. This could be a way in which the sophisticated approach to interpretation of the Refugee Convention that Jason sets out might be relied on, to reduce to a vanishing point the rights that have been given clear expression in the Convention.

Sir Frank Berman has warned that a court that relies on Article 31(3)(c) of the VCLT must be careful not to go too far, as that might entail ‘plac[ing] an unwarranted limitation on the Parties’ freedom of contract’; the court might then ‘substitute for what the Parties had provided in their Treaty [other] rules of international law that applied between them in any case’ (‘Treaty “Interpretation” in a Judicial Context’ (2004) 29 YJIL 315, 320).

International courts and tribunals have been acutely aware of this problem, both within the context of migration and in other fields of international law. As the Grand Chamber of the European Court of Human Rights held in a case about Libyan migrants travelling towards Italy by sea, Hirsi Jamaa v Italy, where Italy argued that, by operation of a different treaty, it was not bound by the European Convention on Human Rights in relation to an issue governed by the other treaty: ‘Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya’ (Hirsi Jamaa & Others v Italy (2012) 163 ILR 132, para 129). The other ‘relevant rules of international law applicable in the relations between the parties’ cannot replace the law of the tribunal.

The limits of the systemic approach was drawn with particular clarity by a senior tribunal in Indus Waters Kishenganga (Pakistan v India), where the tribunal, having been invited to incorporate into its constituent treaty (the Indus Waters Treaty) other rules of international law (in that case, rules of customary international law), concluded that: ‘if customary international law were applied not to circumscribe, but to negate rights expressly granted in the Treaty, this would no longer be “interpretation or application” of the Treaty but the substitution of customary law in place of the Treaty’ ((2013) 157 ILR 362, 412, para 112; underlined here).

Putting the point at its lowest, authorities such as Hirsi Jamaa and Kishenganga might suggest that other rules of international law—whether customary or conventional—will be more likely to impact on the interpretation when they go with the grain of the treaty provision to be interpreted than when they are at loggerheads with it. This seems to be entirely in keeping with Jason’s argument and use of the systemic approach.

Subsequent practice of the parties

With a miraculous treaty such as the Refugee Convention—a strongly worded treaty instrument that could not have come about had it not been born of the horrors of World War II and of the abject situation of displaced persons in the wake of that war—it may however be correct to rely only on the wording of the treaty itself.

Why? As explained by one of the last century’s greatest international lawyers, Charles de Visscher, a Judge both of the International Court and its predecessor the Permanent Court of International Justice: ‘Il n’est pas demandé au juge de pénétrer les dispositions intimes des contractantes; il lui est demandé de dégager par les moyens à sa disposition cette part des intentions des parties que des signes extérieures révèlent. Or, les termes librement choisis par elle sont par priorité l’instrument de cette extériorisation. … De cette garantie contractuelle fondamentale, le texte, œuvre commune des parties, est l’instrument essentiel’ (‘Remarques sur l’interprétation dite textuelle des traites internationaux’ in Liber Amicorum JPA François (AW Sijthoff 1959) 383, 383–384). The International Court gave its imprimatur to this approach in, e.g., Territorial Dispute between Libya and Chad, where it observed that ‘interpretation must be based above all upon the text of the treaty’ (ICJ Rep 1994, p 6, 21–22, para 41).

Take for example Article 28 of the Refugee Convention, which provides in the first sentence of its first paragraph that:

The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require’.

Many refugees are unable to provide documentation that substantiates their identity. This type of travel document will be the only form of identification that they can lay their hands on—the only way in which they can identify themselves in the receiving state. But, displaying buyers’ remorse, some governments take a dim view of this strongly worded treaty obligation, openly rejecting it on its face. In many countries in Europe these days Convention refugees are having to live in a limbo where they cannot lawfully get a job, travel from one country to another to visit family, enrol for education, set up a bank account, receive social security services for the simple reason that governments refuse to issue them Article 28 ‘travel documents’. They become, in Sedley LJ’s arresting phrase from the context of asset freezing, ‘effectively prisoners of the state’ (Ahmed v HM Treasury [2008] EWCA Civ 1187, [2010] 2 AC 534, 580, para 125); the children who are unfortunate enough to be made by the government to grow up without an identity become effectively child prisoners of the state.

In cases before domestic courts, government lawyers have increasingly taken the view that, the clear wording notwithstanding, it surely cannot be the case that all refugees lawfully staying in their territory have a right to such documents unless ‘compelling reasons of national security or public order otherwise require’.

In Siamo (No 116618, 8 June 1994) the French Conseil d’État was asked whether an Angolan refugee who had been issued a travel document but then illegally gave it to certain non-nationals who were seeking to enter France irregularly. Did he have a right to a new Article 28 travel document? The government had refused to give him a new one. But in a terse one page judgment—where the conclusions had been given by one Commissaire du gouvernement Ronny Abraham—the Conseil d’État held that, ‘aucune raison impérieuse de sécurité nationale ou d’ordre public ne justifiait que ce soit d’une manière définitive qu’il fût privé de la possibilité d’obtenir la délivrance de ce document’. Although he had breached French law, Siamo was due a new travel document. The straightforward wording called for a straightforward interpretation; in the face of a clear wording there was no need for any other means of interpretation to enter into it.

Similarly the Borgarting Court of Appeal in Norway found recently in Aron & others v The Immigration Appeals Board (No LB-2016-3734, 13 February 2017) that a number of claimants, of whom some were children born in Norway, had unlawfully been denied travel documents, making it clear that the Norwegian government has been breaching the Refugee Convention in a systematic and flagrant manner. The Norwegian government has taken the view that refugees whose identity is in doubt will by definition be ineligible for issuance of Article 28 travel documents. Shoehorning this large group of refugees into what is Article 28’s narrow exception (‘compelling reasons of national security or public order’) is at sharp angles with the clear meaning of the wording of the Convention text.

Aron is currently pending before the Supreme Court, with hearings scheduled for October 2017. Like Ronny Abraham in Siamo, counsel for the refugees in Aron, Professor Mads Andenas, is arguing that the clear wording of the Convention quite simply affords them a strong right, one which must be allowed to apply and not be adulterated by other means of interpretation. The government’s elaborate arguments in that case have largely been about watering down the clear text of the Convention by reference to materials scripted as ‘subsequent practice’ of the parties. The Court of Appeal gave short shrift to the argument according to which the clear text of the treaty—‘l’instrument essentiel’ for the treaty interpreter, to use de Visscher’s phrase—could be said to have been diluted by the practice of states that are quite simply breaching the clear wording of the Convention.

The International Court of Justice, too, has restricted the use of the subsequent practice argument, as is clear from the judgment of the International Court in Whaling in the Antarctic. There the Court found that the functions which the International Convention for the Regulation of Whaling conferred on the International Whaling Commission (IWC) had ‘made the Convention an evolving instrument’ (ICJ Rep 2014, p 226, 247, para 45); crucially, however, the Court went on to observe that ‘amendments to the Schedule and recommendations by the IWC may put an emphasis on one or the other objectives pursued by the Convention, but cannot alter its object and purpose’ (ibid, para 56). Again, in common with the systemic approach, if the subsequent practice of the parties can be shown to go with the grain of the object and purpose of the treaty, then the argument for reliance on it will be stronger than if the practice cuts against that object and purpose.

The French Conseil d’État’s judgment in Siamo and the Norwegian Court of Appeal judgment in Aron tend to bring out the importance in the context of the interpretation of the Refugee Convention—both in cases concerning adults and children—of the signed text of the treaty itself. ‘The signed text is’, as the ILC Special Rapporteur Sir Humphrey Waldock put it, ‘with very few exceptions, the only and the most recent expression of the common will of the parties’ (ILC Ybk 1964 II p 56; ILC Ybk 1966 II p 220).

So long as the systemic approach and reliance on means of interpretation such as subsequent practice is kept within bounds, Jason Pobjoy’s rejection of literalism in the interpretation of the Refugee Convention in cases relating to children is entirely to be commended. But, given the strong and clear wording of the Refugee Convention and the Convention on the Rights of the Child, and the fact that, more often than not, governments simply deny refugees the rights set out in plain terms in the conventions, the consummation of the promise of ‘a literal construction of the text’—even ‘strict literalism’—is one devoutly to be wished!

Child Refugees and International Law: Legal Imagination in the Service of Others

Wed, 08/30/2017 - 08:30

What is seen and experienced often determines outcomes, in law as elsewhere. Background assumptions about the world (including legal texts) can distort the interpretation and application of norms. Partial perspectives render invisible what should be obvious or perhaps what only becomes obvious with revised theories and concepts. As Jason Pobjoy makes plain in his outstanding book, there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection. Refugee law makes no distinctions based on age; in theory a child who meets the Convention definition is every bit a refugee as an adult. This absence, of course, cuts both ways; it does not make explicit textual provision for the particular circumstances of children either. All refugees are not however treated equally, and in practice there are pervasive problems of visibility and incorrect assessment (Jason Pobjoy, The Child in International Refugee Law, (2017, Cambridge University Press) 5).

Pobjoy does a remarkable job in highlighting the deficiencies (for example, the evidence of the low number of references by domestic decision-makers to the UN Convention on the Rights of the Child) while also mapping out, with admirable precision, credible ways forward. Pobjoy thus unearths the lip-service often paid to the best interests of the child principle when compared with hard facts, but also charts a course for those globally and locally who genuinely want to take the rights of the child seriously within the international refugee protection framework.

Although, as indicated in the Preamble to the 1951 Refugee Convention, it was plainly conceived in human rights terms, international refugee law can now look dated from that perspective (despite the heroic efforts of its most dedicated defenders). Innovative regional developments have helped address limitations, but there has been no formal addition to the international legal regime since the 1967 Protocol, and elements of the text of the 1951 Convention (such as article 33(2)) have been overtaken by other international legal trends (the idea of a public order or national security exception to the non-refoulement principle would now seem counter-intuitive to many human rights lawyers, however attractive the idea may still seem to some states). The international refugee rights regime has also been outpaced in places by the more extensive coverage of international human rights law. What is impressive about Pobjoy’s book is how he gives life to refugee law by bringing children’s rights, and the creative framework that comes within it, into the heart of the normative order. This is not about replacing refugee law, but about building securely on it; perhaps even saving it (as others working on gender and sexual orientation have similarly tried to do). Remedying deficiencies and silences, certainly, but also ensuring a human rights perspective informs key elements (particularly on definitional questions). Here Pobjoy is echoing the guidance of James Hathaway in advocating strongly for a human rights method of keeping refugee law relevant. What is so impressive is the sustained and successful attempt to transform the interpretation and application of refugee law by aligning the legal regimes. The achievement is to render visible what was previously airbrushed out of mainstream accounts of refugee law and of the principle of non-refoulement. Although Pobjoy is not alone (to his great credit he everywhere acknowledges this) in making the case for a child-rights framework, there remains astonishing levels of neglect. The child-rights framework is evidently transformative in ways that test and challenge traditional accounts of human rights and refugee protection. Things cannot remain the same after this intervention.

If this book was only about unearthing silenced narratives then that would be significant enough. But Pobjoy’s work is an example of the careful and targeted deployment of legal imagination (and determined legal research) in the service of others; in this instance the service of the child refugee. He insists that the rights of the child must be embraced within refugee law, and as a basis – in their own terms – for inclusive forms of complementary protection. This is engaged scholarship with the express purpose of transforming legal practice and improving lives. Because international refugee law is often so radically embedded within domestic legal orders (its procedural silence still remains remarkable in this respect), there is an opportunity to re-think and reshape doctrine in a (potentially) impactful way from within.

How does he do this? First, he locates the refugee child within international law, for example, by spelling out the implications of a child-rights framework and then encouraging a systematic approach to the interpretation of the Refugee Convention. He does this in a convincing way by walking the reader through the required approach to treaty interpretation. This is then used as a base from which to launch distinctive ‘modes of interaction’ with refugee law, as part of his desire for a creative alignment of these areas of law, policy and practice (Pobjoy (2017) 31-43)

Second, Pobjoy then moves directly into international refugee law. His focus is largely on the definitional elements, and his aim is to highlight what a child-specific lens will offer. He examines the refugee status determination system, highlighting the visibility problems that he exposes. He then explores what an age-sensitive assessment of risk (well-founded fear requirement) means, and works through the key components. The implications for persecutory harms are then assessed (based again on the dominant human rights based approach), followed by an exploration of the nexus to a Convention ground. This section of the book opens a new landscape of challenge for advocates, decision-makers and adjudicators. He shows precisely how refugee law might be re-imagined, and this is a body of work demanding urgent practical realisation by decision-makers. If not already happening, it is easy to imagine Pobjoy’s arguments being strategically deployed to inform and test the boundaries of existing refugee law.

Third, Pobjoy goes beyond refugee law to make the case for the CRC as a complementary source of protection; circling around a specific and distinctive non-refoulement obligation. He quite rightly notes the tendency to conflate the non-refoulement principle in a way that disrespects the meaning of different treaty standards. In particular, he observes a trend of mentioning the UN Convention against Torture and the relevant ICCPR obligations without noting the separate position in the CRC. This matters because he argues that the scope of complementary protection under the CRC is arguably broader and embraces not only articles 6 and 37 but the article 3 best interests of the child principle too.

It is too often said at this point that a work is ‘essential reading’. But that is exactly what this book is; particularly for anyone who has an advocacy, adjudication or decision- making function. This is a ‘how to’ guide anchored solidly and securely in the firm ground of existing normative commitments. International refugee law often appears as a legal order in serious trouble; as odd as that may sound following the glowing reaffirmation in the New York Declaration 2016. It has had to rely on creative lawyering to keep its core concepts updated, and the scholarly contributions of key individuals to this collective effort (as well, of course, as the work of international organisations such as UNHCR) remain insufficiently acknowledged. Pobjoy is following this path in a way that will re-energise and renew international refugee law with the express purpose of defending the rights of the child. The book is so persuasive precisely because it has such a grounded normative foothold. This is a perspective based on solid research that aims to shift legal doctrine and practice away from partial, limiting and distorted world-views. As a direct result of this legal analysis the hope is that children’s voices will be heard and listened to, refugee children will be seen again but essentially for the first time and in a new light, and that processes and practices will change, often radically. These are the normative battlegrounds where the conflict over the proper interpretation of refugee and human rights law must be won. Pobjoy has shown us how.

Whether continuing interpretative innovation will really save international refugee law is a matter for another day. Whatever the strategic risks involved, the efforts in evidence here must surely soon combine with work for international legal reform. A new Protocol to the 1951 Convention is, for example, long overdue and without it the well-founded fear is that no amount of creative alignment with human rights and associated feats of legal imagination will protect international refugee law from irrelevancy.

 

An Introduction: The Child in International Refugee Law

Tue, 08/29/2017 - 11:00

I want to start by expressing my thanks to the editors of EJIL: Talk! for arranging this book discussion, and to Deborah Anker (with Nancy Kelly and John Willshire Carrera), Eirik Bjorge, Mary Crock, and Colin Harvey for agreeing to participate in the discussion. The participants are all leaders in their fields, and I am privileged that they have agreed to engage with The Child in International Refugee Law.

It is a sad reality that the horrors faced by refugee children – both in their country of origin, and in their attempt to secure international protection in a host State – continue to dominate our news feeds. In the past month alone, we have seen damning reports of Australia’s offshore processing regime, which has involved the transfer and detention of children, and, in some cases, the separation of children from their parents; reports that thousands of Syrian children in Jordan’s Za’atari camp are being deprived of an education; and reports that over 10,000 child migrants went missing in Europe last year. As Harvey recognises in his contribution, “there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection”. The need for change is heightened by the reality that childhood is a wasting asset. As Goodwin-Gill recently observed, “[c]hildhood, once lost, is never recovered”.

The premise underlying The Child in International Refugee Law is that international law has an important role to play in securing greater protection for refugee children. As Beth Simmons persuasively argues, international law provides a “rights based framework to supplement the protective framework that has a much longer history in many societies”. It is particularly important in the context of children, with the Convention on the Rights of the Child (“CRC”) providing a “lever to give … would-be advocates influence over policies likely to have an important impact on the well-being of those who are not able to organize and speak for themselves” (Simmons, Mobilizing for Human Rights (2009) 307).

The central thesis of the book is that the 1951 Refugee Convention is capable of responding in a sophisticated and principled way to refugee claims brought by children. More specifically, the CRC has an important role to play in both informing and supplementing the 1951 Refugee Convention.

In The Child in International Refugee Law I identify three contexts where the CRC might be engaged to assist in determining the status of child seeking international protection (Chapter 1).

First, the CRC might be invoked as a procedural guarantee to inform the refugee determination process (Chapter 2). The 1951 Refugee Convention is silent on the procedures that a state should implement in designing a domestic system of refugee status determination. In contrast, the CRC comprises a number of provisions that may inform the determination process, including the principle that a child has a right to express views freely and be heard in any judicial or administrative proceedings affecting her. In promoting a construction of the child as an independent social actor, the CRC provides a solid legal basis for ensuring that children – both accompanied, and unaccompanied –  are not rendered invisible in domestic asylum processes.

Secondly, the CRC might be drawn upon as an interpretative aid to inform the interpretation of the 1951 Refugee Convention definition (Chapters 3-5). International law, and in particular international human rights law, has grown exponentially over the past 60 years. Many of the relatively nascent precepts contained within the 1951 Refugee Convention have now been rearticulated, recontextualised, and in some cases expanded in a comprehensive suite of international human rights treaties. It is now widely accepted that the 1951 Refugee Convention definition should be interpreted taking into account this broader international human rights framework. In these circumstances there is a clear, principled basis for drawing on the CRC – the most authoritative articulation of the obligations that a state owes to a child – as an aid to inform the interpretation of the 1951 Refugee Convention definition in claims involving children.

Thirdly, the CRC might give rise to an independent source of status outside the traditional refugee protection regime, which may, in certain circumstances, provide a more appropriate and more child-friendly gateway for assessing the protection needs of a child seeking international protection (Chapter 6). It is accepted that the CRC comprises a complementary source of protection via the principle of non-refoulement implicit in, at the very minimum, articles 6 and 7 of the CRC. Article 3 of the CRC, which specifies that the best interests of the child shall be a primary consideration in all actions concerning her, provides a critical additional safeguard for children seeking international protection. In particular, the best interests of the child principle may preclude the return of a child to her home country notwithstanding the fact that the child is not eligible for protection under the 1951 Refugee Convention.

The Child in International Refugee Law analyses the relationship between the 1951 Refugee Convention and the CRC within these three contexts. Although the analysis is anchored in international law, it draws extensively on domestic case-law in order to illustrate the actual and potential scope of the two international legal regimes. In total, over 2,500 refugee decisions involving children were identified and reviewed for the purposes of the project. These cases have been indexed and captured in a web resource (www.childref.org), which, consistent with the central argument developed in the book, has been designed to promote greater interaction between the 1951 Refugee Convention and the CRC. The website is due to be launched at the end of 2017.

The book’s conclusion is that both the 1951 Refugee Convention and the CRC have a critical role to play in securing protection for children seeking international protection. Today, a refugee lawyer must also be human rights lawyer. It is only by embracing the mutually reinforcing relationship between the two legal regimes – responsive both to the difficulties associated with refugeehood and the distinct needs and vulnerabilities of childhood – that these children can be guaranteed the protection to which they are entitled under international law.    

Announcement: Book Discussion on Jason Pobjoy’s “The Child in International Refugee Law”

Tue, 08/29/2017 - 08:00

The blog is happy to announce that over the next few days, we will host a discussion of Jason Pobjoy’s new book, The Child in International Refugee Law. Jason Pobjoy is a barrister at Blackstone Chambers, where he has a broad practice including public and human rights law, refugee and immigration law and public international law. He is a Research Associate at the Refugee Studies Centre, University of Oxford.

Jason will open the discussion this afternoon with an introduction to the text . This will be followed by posts from Colin Harvey, Eirik Bjorge, Mary Crock, and Deborah Anker with Nancy Kelly & John Willshire Carrera. Jason will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

Is Ukraine a “Stranger” to the EU? OPAL Case

Mon, 08/28/2017 - 08:00

In their recent contribution to the Global Trust Working Paper Series, Professor Eyal Benvenisti and Dr. Sivan Shlomo Agon raise one conspicuous, though rarely asked, question within a broader topic of state sovereignty in a globalised world. They wonder how sovereign decision-making powers can be restrained in the face of interests of “strangers”, i.e. third countries, as well as natural and legal persons, to which the effects of national policies “radiate” without allowing them to hold the decision-makers politically accountable. The authors make the first proposition that:

“international courts can and in fact do play a role in promoting the duties of states towards strangers affected by their policies, thereby alleviating some of the democratic and accountability deficits associated with globalization” (p.2).

Their second proposition is that international courts have developed ways to account for the “interests of affected others from within and outside” their host systems. Both propositions are then tested against the ample practice of the WTO dispute settlement system.

The article echoes well in the universe of “global administrative law” (GAL), i.e. a normative paradigm promoted by Professor Benvenisti which introduces practices of accountability (transparency, good process, reasoned decision-making, and basic legality) in what would otherwise be a non-democratic process of global administration. (For early conceptualizations of GAL, see the EJIL’s symposium issue).

The article is also provocative as it resonates far beyond the ambit of the WTO law. The present note offers to look for the advanced propositions in a group of energy-related cases currently pending before the Court of Justice of the EU (CJEU).

Admittedly, international energy law is rarely scanned for general international law trends and patterns. This may be due to the highly technical complexity of the underlying field of study, combined with the traditional view of energy as a nation state prerogative (recall General Assembly resolution 1803 (XVII) of 14 December 1962 “Permanent sovereignty over natural resources”). Yet, the intensity of present-day energy cooperation, spurred by critical socio-economic and even geopolitical needs, has effectively isolated exclusively national areas of regulation (e.g., access to upstream energy resources) and produced a layer of new, inherently international rules of community building.

In Europe, this resulted in the creation of the Energy Community, an inter-governmental organization of which both EU and non-EU countries (e.g. Ukraine) are members. The preamble of the Treaty establishing the Energy Community speaks of the resolve “to establish among the Parties an integrated market in natural gas and electricity, based on common interest and solidarity”. Its Article 2 sets the task of creating “a stable regulatory and market framework” and “a single regulatory space”. This direction is reinforced by Articles 6 (equivalent of Article 4(3) TEU espousing the duties to actively promote, facilitate and refrain from undermining the community) and 18 (equivalent of Articles 101-102, 107 TFEU related to competition). For non-EU countries which agree to implement the EU’s energy acquis, the Energy Community is an important promise of integration and solidarity. For Ukraine, e.g., this participation equals a strategic political choice (in the face of historical energy dependence on Russia).

Nevertheless, between December 2016 – March 2017 CJEU was seized with three separate actions (T-849/16, T-883/16 and T-196/17), each requesting annulment of the European Commission’s decision of 28 October 2016. Applicants in all three cases plead the lack of “regardingness” towards Ukraine on the part of the EU (represented by the European Commission). In addition, two applicants – state-owned Naftogaz of Ukraine (Naftogaz) and PGNiG Supply & Trading (PST) – effectively seek “regardingness” from the court itself.

The challenged Commission’s decision relates to the regulatory regime of the OPAL pipeline, which runs from the entry point Lubmin in the north of Germany to the exit point Brandov near the German-Czech border. OPAL carries natural gas arriving exclusively through Nord Stream. The latter is a pair of sub-marine pipelines commissioned in 2011-2012 as the third route to bring Russian gas to the EU; Nord Stream is 51% owned by Russian PJSC Gazprom, which also exerts joint control over OPAL. The first, traditional route for these deliveries has been the Ukrainian gas transmission system, which, since 1991, belongs to the state of Ukraine and is operated by Naftogaz Group. The second route (Yamal-Europe) was finished in 2006 and remains in joint ownership of Gazprom and Polish incumbent PGNiG, which the European Commission qualified as joint control for the Third Energy Package purposes. From the Ukrainian perspective, the amassment of alternative delivery routes for Russian gas has been part of Russia’s strategy to strip Ukraine off the valuable gas transit revenues as well as other advantages (geopolitical, security, etc.) of maintaining a critical connection to Europe and the EU in particular.

Nord Stream has so far escaped the EU regulation (as highlighted in the European Commission’s position on application of the EU law to the analogous Nord Stream 2 project).

In 2009, OPAL was granted an exemption from certain EU law requirements (third-party access, tariff regulation, unbundling), conditioned upon a limitation on gas deliveries at Brandov by dominant undertakings Gazprom and RWE. This Commission decision was motivated by competition concerns, and the dominant undertakings were given an opportunity to lift this limitation by offering a portion of gas volumes to the market. Since this chance was never exploited, the limitation effectively prevented Gazprom and its affiliates from bringing additional gas through Nord Stream. This meant that gas volumes continued to flow through other transit routes, including Ukraine where there is no deficit of available transport capacity.

By the challenged decision, the Commission authorises changes to the 2009 regime of OPAL causing the increase in gas deliveries through Nord Stream. Ukraine fears that these additional volumes are diverted from the Ukrainian route, thus undermining the war-torn country’s weakened financial stance, and its security of supply situation, as well as basically negating the significance of recent years’ fast-forward reforms in its gas sector. For Ukraine, the situation is dire, as the challenged decision corresponds in time with intensive works on the Turkish Stream, another gas pipeline sponsored by Gazprom to diminish gas transit volumes through Ukraine.

In these circumstances, PST, the Republic of Poland and Naftogaz argue before the CJEU that in adopting the challenged decision Ukrainian interests were not taken into account. While PST refers to the default on the obligation to consult on infrastructure developments under Article 274 of the Ukraine-EU Association Agreement, Poland and Naftogaz rely on the Energy Community Treaty as forming the basis for such a duty of consideration. More specifically, Naftogaz claims that when applying the EU’s Directive 2009/73/EC, the Commission has to account for the impact of its decisions on competition, security of supply and market efficiency in the Energy Community (i.e. Ukraine).

Interestingly, the European Commission itself mentions certain interests of Ukraine and the Energy Community in the challenged decision. Yet it has apparently done so without prior interchanges with the Ukrainian side.

In addition, PST and Naftogaz seek access to the court through Article 263, para four TFEU. Since the challenged decision does not address them directly, they need to prove that it is of “direct and individual concern to them”. This clausula (partially covered by the Plaumann test) is universally famous for the high legal threshold for private parties. Moreover, the European Commission’s decision at hand was made based on EU law and relates to the EU-based infrastructure. However, it has a real chance of objectively affecting the two claimants. For instance, Naftogaz (as a group of companies) produces the bulk of gas in Ukraine, supplies all segments of the Ukrainian market, currently operates the gas transit contract with Gazprom (under which the Ukrainian gas transmission system is contracted), procures gas on EU markets and ensures the country’s security of gas supply. State-owned Naftogaz receives revenues from gas transit through Ukraine and critically depends on access to Western gas markets, which is now enabled by physical reverse flows from Slovakia, Hungary and Poland (while virtual reverse flows are still obstructed by Gazprom) dependent on forward transit flows of Russian gas.

More details on the case unfortunately could not be disclosed now. But in words of Benvenisti/Agon, CJEU functions within a specific treaty regime and is:

“expected not merely to resolve disputes, but to promote the regime’s underlying goals and interests, overcome international cooperation problems, and keep states within a particular normative community” (p.7).

CJEU could have the chance to pronounce on whether the Energy Community in fact promises a duty of consideration, when and how this duty should be exercised, and whether there is a priority of interests compared to other “strangers” (e.g., Russia). The proceedings could also test the robustness of the court’s approach towards locus standi in such globalised cases. Ultimately, the disputes may be instrumental in uncovering the CJEU’s role in democratisation of global governance, especially in the immediate vicinity of the EU.

Disclaimer: While the author currently represents one of the litigants, thoughts and conclusions given here are without prejudice to the party’s position in the proceedings and belong to the author alone.

Announcements: New additions to the UN Audiovisual Library of International Law; CfP Contingency in the Course of International Law; Conference on Dispute Resolution in the Law of International Watercourses and the Law of the Sea

Sun, 08/27/2017 - 08:00

1. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Franck Latty on “Le droit international du sport” and “La responsabilité internationale de l’Etat dans le contentieux arbitral d’investissement”.

2. Call for Papers: “Contingency in the Course of International Law: How International Law Could Have Been”, Amsterdam, 14-16 June 2018. The conference will ask a question that is deceptive in its simplicity: How might international law have been otherwise? We want to question the present state of international law by challenging its pretence to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: “If there is a sense of reality, there must also be a sense of possibility.” Fleur Johns (UNSW) will give a public keynote and Samuel Moyn (Yale) will give a closing address. Please see here for more information. The deadline for the submission of abstracts is 1 December 2017. 3. Luxembourg Conference on Dispute Resolution in the Law of International Watercourses and the Law of the Sea. The Conference “A Bridge Over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea” of the Max Planck Institute Luxembourg and the Vrije Universiteit Brussel will take place on 25-26 September 2017 in Luxembourg. The deadline for registration is 4 September 2017. The program and registration details can be accessed here.

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