Showing papers in "International and Comparative Law Quarterly in 2016"

Ambition and differentiation in the 2015 paris agreement: interpretative possibilities and underlying politics

Abstract: The 2015 Paris Agreement represents a historic achievement in multilateral diplomacy. After years of deeply discordant negotiations, Parties harnessed the political will necessary to arrive at a climate change agreement that strikes a careful balance between ambition and differentiation. The Paris Agreement contains aspirational goals, binding obligations of conduct in relation to mitigation, a rigorous system of oversight, and a nuanced form of differentiation between developed and developing countries. This article will explore the key building blocks of the Paris Agreement—ambition and differentiation—with an eye to mining the text of the Agreement for its interpretative possibilities and underlying politics.

A defence of the margin of appreciation and an argument for its application by the human rights committee

Abstract: The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR). This article critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the International Covenant on Civil and Political Rights (ICCPR), so the doctrine should be applied by the Human Rights Committee.

The international law framework regulating the use of armed drones

Abstract: This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike.

Weathering the storm: legality and legal implications of the saudi-led military intervention in yemen

Abstract: On 26 March 2015, a Saudi-led coalition launched ‘Operation Decisive Storm’ on the territory of the Republic of Yemen following a request by that country's beleaguered government. Although it received no prior fiat from the UN Security Council and took place amidst a civil war, the intervention met with approval from numerous States, with only few critical sounds. Closer scrutiny nonetheless reveals that the self-defence justification, which is primarily relied upon, does not provide a convincing legal basis for the operation. Moreover, the intervention is problematical from the perspective of the intervention by invitation doctrine and undeniably exposes its indeterminacy and proneness to abuse.

Defining the international rule of law: defying gravity?

Abstract: This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

Comparative subnational foreign relations law in the Chinese Special Administrative Regions.

Abstract: The increasing importance of subnational governments in interstate affairs calls for international and comparative law scholars to take subnational foreign relations law more seriously. This article conceives this law as the legal rules that regulate the vertical allocation of foreign relations powers within and across States, and constructs an analytical framework that addresses the questions of why any sovereign would grant extensive foreign relations powers to constituent entities and how such an arrangement plays out in actual practice. This study takes a comparative approach to case studies of the Special Administrative Regions (SARs) of the People's Republic of China: Hong Kong and Macau, which are known for their unusually extensive paradiplomatic powers, which not only defy conventional categories but also surpass those of other substates.

Socio-economic rights during economic crises: A changed approach to non-retrogression

Abstract: When the UN Committee on Economic, Social and Cultural Rights (CESCR) released a letter in early 2012 addressing the financial and economic crises, it was long overdue. Finally, and around four and a half years after the crises began, the body responsible for monitoring those rights that had been most severely impacted had spoken. But what had been said? This article examines the alterations to the doctrine of non-retrogression that the 2012 Letter instigated. It does so by reference to the ‘Business as Usual’ and ‘accommodation’ theories of emergency response. The Letter to States is argued to have taken the Committee away from an approach to non-retrogression that treated times of normality and emergency in a similar way, and towards an approach that allows derogation-style deviations from the Covenant. This, it is argued, could have detrimental effects for the protection of economic and social rights. The difficulties in applying such an approach are considered.

Self-determination and foreign direct investment: reimagining sovereignty in international investment law

Abstract: International investment law can be criticized for its understanding of sovereignty. Informed by the works of Koskenniemi, this article re-imagines ‘sovereignty’ based on a host state population exercising its right to economic self-determination. Recent transparency initiatives in international investment law support this conceptualization of sovereignty. Further, the stance taken aligns with the continuous evolution of the international investment law regime. The establishment of a different perspective on sovereignty in international investment law highlights the need for an alternative understanding of this term if international investment law is to achieve widespread approval.

The Chagos Marine Protected area arbitration: expansion of the jurisdiction of unclos part XV courts and tribunals.

Abstract: This article shows that the Tribunal in the Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom has contributed considerably to the creeping expansion of compulsory jurisdiction of courts and tribunals established under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has employed three techniques to do so. First, it has read down the jurisdictional precondition to exchange views in Article 283(1) of the UNCLOS; second, it has expanded the limited scope of compulsory subject-matter jurisdiction under section 2 of Part XV by broadening the meaning of the phrase ‘any dispute concerning the interpretation or application of this Convention’ to include incidental, related—and through the backdoor of a balancing exercise—even extraneous disputes; and, third, it has restricted the limitations and exceptions to compulsory jurisdiction in Articles 297 and 298 of the UNCLOS. Few would have predicted in 1982 that a Part XV court or tribunal would—within the context of such a balancing exercise—ever find that a colonial era undertaking created binding legal obligations under international law and that the United Kingdom was obliged to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes. The Tribunal's expansive reading of the jurisdictional provisions in Part XV opens up the possibility of future rulings, albeit incidentally, on issues that have little to do with the law of the sea.

The resolution of disputes before the singapore international commercial court

Abstract: The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to deal with international commercial litigation. Adapted from the arbitral model but underpinned by judicial control, central to the SICC framework are party autonomy and flexible procedural rules. The Hague Convention complements the SICC project by increasing the number of jurisdictions in which Singapore judgments will be recognized and enforced. These 2015 developments—key to establishing Singapore as the regional hub for dispute resolution—requires careful working out and an evaluation is needed of the jurisdictional regime that applies to the SICC and the internal allocation of jurisdiction as between the SICC and the Singapore High Court sans the SICC, as well as the impact of the Hague Convention. This article focuses on explaining the in personam jurisdictional rules of the Singapore High Court that now includes the SICC division. Its chief objective is to offer the international community an overview of the working framework of Singapore's version of an ‘international’ commercial court.

Protecting mobile money customer funds in civil law jurisdictions

Abstract: The provision of financial services through mobile phones is a powerful tool to foster financial inclusion, and thus economic growth, in developing countries. However, it raises important regulatory issues. Given the vulnerability of most potential customers of these services, the protection of customer funds is important. In common law countries, trust accounts are an effective response to these concerns. In civil law jurisdictions however, in the absence of trusts, protection of customer funds is more difficult. This paper identifies the theoretical and practical problems that regulators in civil law jurisdictions might face when trying to protect customer funds and explores how fiduciary contracts, mandate contracts and direct regulation might be used to achieve this goal. It offers a series of practical recommendations for policymakers in developing countries that provide a range of regulatory options that combine private law and regulation.

The end of amnesty or regional overreach? interpreting the erosion of south america’s amnesty laws

Abstract: The atrocious abuses committed under South America's dictators resulted in a wave of amnesties. Following transitions to democracy, challenges from victims and civil society unpicked several of these amnesties, leading to hundreds of perpetrators facing prosecution. These developments prompted far-reaching claims in academic literature and policy reports regarding the significance of the erosion of South America's amnesties for shaping international legal norms and policy preferences on amnesties within the region and beyond. This article draws on a comparative analysis of case law from the Inter-American Court of Human Rights and national courts as well as legislative changes to argue that there is a regional trend to move away from broad, unconditional amnesties enacted during or after dictatorial rule. However, it notes that this is not universal across the region, nor does it represent a rejection of all forms of amnesty. The article then tests the claims being made in the literature regarding the significance of the regional trend on the legality, durability and desirability of amnesties. It finds that there is little evidence to support claims that the regional developments are indicative of a broader normative shift. It concludes by identifying the risks posed by regional overreach.

THE ADMISSIBILITY CRITERION UNDER ARTICLE 35(3)(b) ECHR: A ‘SIGNIFICANT DISADVANTAGE’ TO HUMAN RIGHTS PROTECTION?

Abstract: The purpose of this contribution is to provide a critical overview of issues of principle related to the ‘significant disadvantage’ admissibility criterion under 35(3)(b) ECHR, in light of the ongoing debate on the Court's reform. It argues that the admissibility criterion: undermines direct access to justice at the international level; affects the right of individual petition to the Strasbourg Court; constitutes a misunderstanding of the subsidiarity principle within the Convention machinery; urges the Court to consider the merits during the admissibility stage in a sensitive area of adjudication such as human rights; and entails the risk of an indirect classification of rights on the basis of the financial damage suffered by the applicant. The article links these points with the discussion on the Court's reform and considers alternative proposals to reduce its workload. It concludes by underlining that the ‘significant disadvantage’ criterion could be a suitable opportunity to address questions related to the Court's legitimacy, including the ECtHR's precise role and function within the Convention.

Water for all? Developing a human right to water in national and International Law..

Abstract: Human rights are one of the great ideas of the twentieth century. After World War II, first Eleanor Roosevelt in relation to the Universal Declaration of Human Rights (‘the Universal Declaration’), and then later the drafters of the European Convention on Human Rights (‘the European Convention’) saw human rights as the way to make the world fairer and safer.

The right to vote for non-resident Citizens in Europe.

Abstract: The right to vote is the most important political right in international human rights law. Framed within the broader right of political participation, it is the only right in the International Covenant on Civil and Political Rights not guaranteed as a universal human right but rather as a citizen's right. While limitations on the right to vote are permissible in respect of citizenship and age, residency-based restrictions are not explicitly provided. However, recent judgments of the European Court of Human Rights endorse a view that voting rights may be conditioned on residency on the grounds of an individual's bond to their country-of-origin and the extent to which laws passed by that government would affect them. This article questions this proposition and explores whether disenfranchisement based solely on residency constitutes an unreasonable and discriminatory restriction to the essence of the right.

The limitations of a human rights approach to corruption

Abstract: International human rights law may serve as a language through which lawyers and others describe the harms resulting from corruption, but this approach has significant limitations as a legal framework. Despite a growing emphasis among scholars and practitioners on a human rights approach to the problem of corruption, this body of law does not provide a strong basis for addressing such conduct. International human rights treaties make no mention of corruption, and human rights treaty bodies have not brought conceptual clarity to the question of how corruption violates or undermines human rights. Given that human rights law binds States alone, it is also ill-suited to a phenomenon that typically occurs at the intersection of the public and private sectors. Even as a language for describing how corruption harms social and economic rights, human rights law has its limitations, some of which come into relief when compared with the field of development economics.

European union data protection law and media expression: fundamentally off balance

Abstract: The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction's data protection laws, this article provides the first systematic analysis of whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, which includes criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection's twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains largely unaddressed by the proposed new Data Protection Regulation. Practical suggestions are put forward to ameliorate these troubling inconsistencies within the current process of reform.

Private international law and eu external relations: think local act global, or think global act local?

Abstract: In the European Union, private international law has almost exclusively been developed through the adoption of internal acts (particularly EU Regulations) in the pursuit of internal goals (principally, enhancing the efficient functioning of the internal market, and more recently and broadly the construction of an area of freedom, security and justice). This focus has and must come under challenge in light of two developments. The first is the apparent establishment of EU exclusive external competence in the field of private international law, creating the opportunity for external action by the EU. The second is the increased recognition that internal action by the EU has external effects, which should be viewed not merely as incidental but also as potentially instruments of external policy. In conjunction, these developments demand consideration of what role private international law could and should play as part of EU external relations. This article critically examines a range of possible techniques which might be adopted in relation to this new external dimension of EU private international law. These methods are not necessarily unique to private international law or the EU, and thus this article also provides a case study of the range of legal techniques which can be used by international actors to project policies externally.

Treaty succession in annexed territory

Abstract: This article explores the question whether the territorial application of a treaty extends to unlawfully annexed territory. In this context, it examines State succession and the territorial application of treaties under general international law, as well as the moving treaty-frontiers rule and the extraterritorial application of certain treaties, specifically with respect to annexed territory. The article concludes that, while in some cases there is scope to find that a treaty applies extraterritorially in annexed territory, notably as a result of its object and purpose or its provisions, there may also be room, subject to the provisions of the treaty, for a limited form of treaty succession in such territory. Limitations to the obligation of collective non-recognition offer theoretical and practical support for this position.

The united nations at 70 years: the impact upon international law

Abstract: This article is about the United Nations (UN) and International Law. It is not about internal developments at the UN. It is not about new Committees or other UN structures, relations with Specialized Agencies or indeed other major international organizations. I have not taken a snapshot today, but rather seek to show how the UN has, through the 70 years of its existence, had an impact on international law.

Bias in collegiate courts.

Abstract: This article addresses the issues attending common law collegiate courts' engagements with allegations of bias within their own ranks. It will be argued that, in such cases, it would be inappropriate to involve the collegiate panel or any member thereof in the decision, since such involvement inevitably encounters difficulties. The common law's dilemmas require drastic solutions, but the common law arguably is ill-equipped to implement the required change. The answer, it will be argued, is legislation.

Private commercial law conventions and public and private international law: the radical approach of the cape town convention 2001 and its protocols

Abstract: It is a remarkable circumstance that with a few honourable exceptions all writers on international law in general and treaty law in particular focus exclusively on public law treaties. Private law conventions, including those involving commercial law and the conflict of laws, simply do not come into consideration. Yet such conventions, like public law conventions, are treaties between States and are governed by the 1969 Vienna Convention on the Law of Treaties and many of them are of great significance. Their distinguishing feature is, of course, that while only States are parties, private law conventions deal primarily, and often exclusively, with the rights and obligations of non-State parties. So while the treaty is international it does not for the most part commit a Contracting State to any obligation other than that of implementing the treaty in domestic law by whatever method that State's law provides, if it has not already done so prior to ratification.

Ordering cessation of court proceedings to protect the integrity of arbitration agreements under the brussels i regime

Abstract: The CJEU judgment in West Tankers created much controversy on the question of whether issuing an anti-suit injunction in order to protect the integrity of arbitration agreements should fall within the scope of the arbitration exclusion in Article 1 of the Brussels I Regulation (2001). The negative answer of the Court has been since challenged many times by academics and practitioners and new approaches were proposed during the drafting of the Brussels I Recast. Although the Court had not since considered whether the Recast modified the legal regime, in Gazprom the Advocate General gave his opinion on the basis that it had. The Court in Gazprom, however, saw the enforcement of an arbitral award ordering cessation of court proceedings to be a distinct issue which is not covered by the Brussels I Regulation. This article discusses first the applicability of the Brussels I Regulation to the enforcement of arbitral awards ordering anti-suit injunction as a final relief. Secondly, it examines anti-suit injunctions issued by Member State courts in the post-Recast era. It aims to reveal the extent to which an order for cessation of court proceedings (or an anti-suit injunction) to protect the integrity of arbitration agreements is permissible under existing law.

The Problem of Causality in International Human Rights Law

Abstract: The field of human rights monitoring has become preoccupied with statistical methods for measuring performance, such as benchmarks and indicators. This is reflected within human rights scholarship, which has become increasingly ‘empirical’ in its approach. However, the relevant actors developing statistical approaches typically treat causality somewhat blithely, and this causes critical problems for such projects. This article suggests that resources – whether temporal or fiscal - may be better allocated towards improving methods for identifying violations rather than developing complicated, but ultimately ineffective, statistical methods for monitoring human rights performance.

The Law Applicable to the Arbitration Agreement: Towards Transnational Principles

Abstract: This article examines the problem of the law governing the validity of the arbitration agreement. The cases of Sulamerica in the English Court of Appeal and of FirstLink in the High Court of Singapore demonstrate that leading arbitration jurisdictions around the world can come to diametrically opposite results. In particular, there are currently diverging views as to whether the law applicable to the arbitration agreement should be the law chosen by the parties to govern their substantive legal relationship or the law of the seat of the arbitration. The issue is unlikely to be settled soon at international level. However, without embracing extreme approaches that purport to determine the validity of the arbitration agreement without reference to any national legal system, a more ‘transnational’ approach should be encouraged. This may emerge, based on three structured principles which would be desirable for international convergence, namely the non-discrimination principle, the estoppel principle and the validation principle. These principles can be developed without conflicting with the conventional conflicts-of-laws approach which was adopted by the English Court of Appeal in Sulamerica.

Addressing environmental concerns through trade: a case for extraterritoriality?

Abstract: In the absence of stringent and coordinated international action, States might seek alternatives to promote environmental protection unilaterally. Trade measures may be tools to promote environmental protection in other countries through the means of trade restrictions based on the process and production methods of a good (PPMs), but can they be used to protect global environmental concerns? PPMs are considered to be controversial because of their extraterritorial character. Inspired by other fields of law where an extraterritorial application of laws is accepted, such as competition law and international human rights law, this paper proposes a systematic approach to assess the acceptability of extraterritorial trade measures with an environmental objective within the scope of the general exceptions of the GATT. This contribution purports to answer whether the WTO forms a stumbling block for States to address global environmental concerns through trade.

Food security and the right to food: finding balance in the 2012 Food Assistance Convention

Abstract: On 25 April 2012, after years of negotiations delayed by halts and setbacks, the Food Assistance Convention was adopted—the latest in a series of agreements that since 1967 have regulated the international provision of food aid. Great expectations have been placed on the adoption of the Convention. In particular it was hoped that the Convention would answer the call for a new system of food aid governance, introduce more effective mechanisms to address world's food insecurity and, ultimately, improve and modernize the rules applicable to food aid. This article provides the first critical commentary of the Convention's text, assesses the strengths and weaknesses of its provisions and considers whether and how the Convention has modified the architecture of international food aid regulation. The article also indicates where amendments to the rules might be needed to make the international regulation of food aid more effective. The article concludes that the Convention is, on balance, a positive instrument that could improve governance and adequacy of food assistance. The Convention is also important for the international human rights discourse on how States can fulfil their obligation to assist countries in need in that it offers guidance on how to meet such obligation in the specific context of the right to food. States should therefore be urged to sign and ratify it.

Towards unilateralism? house of commons oversight of the use of force

Abstract: Engaging democratically elected assemblies in national decision-making over the extraterritorial use of force seemingly provides a secure check on executive abuses of power. Many liberal democracies therefore maintain constitutional requirements that their elected national assembly must authorize decisions to use military force. By comparison, the UK Parliament has historically played a limited and often indirect role in authorizing the use of force. From the vote on the Iraq War in 2003 onwards, however, the UK Parliament's role has increased to the point where, in August 2013, the defeat of a Government motion seeking approval for the use of force undermined efforts to build an international coalition to intervene in the ongoing Syrian conflict. Whilst debate regarding this shift has hitherto concentrated on the degree to which parliamentary oversight of the war prerogative is desirable, in this article we consider what Parliament's evolving role heralds for the general relationship between domestic and UN mechanisms. We challenge the underlying assumption that Parliament's interventions mark an indisputably positive development in constraining the use of force. When coupled with the focus upon the doctrine of humanitarian intervention which has accompanied many controversial exercises of UK military force since the end of the Cold War, the involvement of Parliament in the decision-making process risks hollowing out UN Charter safeguards. Successive UK Governments have acquiesced to the extension of Parliament's role, with the effect of shifting the locus for legitimating uses of force away from UN institutions, where the UK cannot control the actions of other States, and into a domestic sphere which is susceptible to executive influence.

State immunity and the right of access to a court under the eu charter of fundamental rights

Abstract: This article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court’s reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect.