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9531. The Use and Abuse of WTO Law in Investor-State Arbitration: A Reply to Jürgen Kurtz

Author:
Robert Howse and Efraim Chalamish
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
The challenge of coherence and consistency in jurisprudence has become a major concern for scholarship in international investment law. The assumption is that such consistency is necessary to increase predictability, reduce transaction costs, and maintain or enhance credibility and legitimacy. Several of the key norms in investment treaties are articulated as quite general standards of treatment, such as Fair and Equitable Treatment and National Treatment. This gives considerable scope to arbitral tribunals to define the contours of investor protection. But these tribunals operate in a decentralized system, without stare decisis or appellate review by a permanent judicial instance. When we turn to the law of the World Trade Organization (WTO) we see by contrast a jurisprudence that has evolved through appellate review premised on de facto (if not jure) vertical stare decisis. It is thus understandable that, where the norms seem similar, investor-state arbitral tribunals might turn to the WTO case law as a common acquis or common ground for the interpretation of investment treaties. Moreover, due to the important historical and conceptual links between investment treaties and trade jurisprudence, special attention should be given to the judicial dialogue created by the dependence of investor-state arbitral tribunals on WTO jurisprudence. Kurtz, who has contributed significantly to the understanding of this dialogue in investor-state tribunals' decisions, argues here that instead of using WTO case law as an anchor that promotes coherence and consistency in investment law jurisprudence,the arbitral tribunals, through their multiple misunderstandings of the WTO acquis, have actually produced greater incoherence and inconsistency in the case of the National Treatment standard.

9532. The Use and Abuse of WTO Law in Investor-State Arbitration: Competition and its Discontents: A Rejoinder to Robert Howse and Efraim Chalamish

Author:
Jürgen Kurtz
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
As a starting point, I am in full agreement with them that fair and equitable treatment offers useful contextual guidance to an adjudicator faced with delineating the scope of national treatment in investment law. The fair and equitable standard has been interpreted (often in light of its adoption of customary precepts) as a limit on a very particular type of discrimination. If this is correct, then we must logically turn our mind to what other forms of discrimination are to be countered by national treatment (otherwise we face a problem of redundancy). As it happens, this point buttresses my criticism of the Methanex award. Howse and Chalamish identify the failure of the Occidental Tribunal to seriously consider the 'division of labour' between the fair and equitable standard and national treatment. But this flaw appears also in the Methanex award. In fact, given the conflicting claims made of the fair and equitable standard in that case, one might suggest the error is even more egregious in Methanex.

9533. Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It

Author:
Roger S. Clark
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
In February 2009, the International Criminal Court's Special Working Group on the Crime of Aggression concluded its efforts to draft the 'provision' called for in Article 5(2) of the Rome Statute 'defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime'. It produced two draft Articles: Article 8bis, the 'definition', and Article 15bis, the 'conditions'. There was substantial agreement on the definition (and on 'Elements' of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues. For the definition, these include: applying General Assembly Resolution 3314 to individual responsibility; articulating the 'leadership' nature of this crime; the threshold requirement that the violation of the United Nations Charter be 'manifest'; and consistency with provisions in the Statute, especially those in the 'general part'. In respect of conditions, the difficult issue surrounds the role of the Security Council and the many variations on that theme in draft Article 15bis. The contribution concludes with a fundamental procedural question: can the amendment be applied erga omnes or does it apply only to those states specifically accepting it?
Topic:
Security and United Nations

9534. Second Thoughts on the Crime of Aggression

Author:
Andreas Paulus
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
Topic:
International Law

9535. Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus

Author:
Claus Kreß
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
Topic:
International Law

9536. Aggression, Legitimacy and the International Criminal Court

Author:
Sean D. Murphy
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.
Topic:
International Law

9537. Raphael Lemkin: A Tribute

Author:
Sergey Sayapin
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
This short article honours Professor Raphael Lemkin (1900–1959), author of the term 'genocide' and initiator of the Convention for the Prevention and Punishment of the Crime of Genocide, on the occasion of the 50th anniversary of his death. The article provides a brief overview of his career in international law and highlights Professor Lemkin's key ideas which shaped the Genocide Convention.
Topic:
International Law

9538. Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law

Author:
Ana Filipa Vrdoljak
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
Topic:
International Law and United Nations
Political Geography:
Europe

9539. Pulling the Stops on Genocide: The State or the Individual?

Author:
Amabelle C. Asuncion
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
The International Court of Justice's decision on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) has exposed the unforeseen irony in the international consensus on the singular distinction of genocide as the crime of crimes. Defying expectations, this classification coupled with the conception of a 'civil genocide' has magically transformed into a legal shield which protects states from responsibility even as individual convictions are being handed down. Yet, the history of the Genocide Convention easily recalls the objective of preventing the commission of genocide by states and individuals alike. This article thus ponders on the virtue of seeking recourse under the Genocide Convention – whether against the state or the individual. In traversing this inquiry, it embarks on a comparative analysis of selected case law from the International Criminal Tribunal of Yugoslavia, the International Criminal Tribunal of Rwanda, and the International Court of Justice. As it uncovers a counterintuitive clash of jurisprudential outcome and a widening gap between the ideal and the real, the article identifies the legal bolts which need to be adjusted so that the genocide stops can be pulled in the right direction.
Topic:
History
Political Geography:
Yugoslavia and Rwanda

9540. Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention

Author:
Sarah Miller
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
European participation in controversial aspects of the 'war on terror' has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states' extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.
Topic:
Human Rights
Political Geography:
Europe