In association with the International Commission of Jurists

Recent Posts

02 Oct

[Judge Howard Morrison is a Judge at the ICTY and the ICC] Dr. Philipp Ambach deals with a topic that is contemporary and contentious. In a world where the globalisation of most aspects of human life and endeavour is readily apparent it cannot be that case that those who engage in commercial, and often highly profitable, enterprises that have an impact upon...

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02 Oct

[Dr. Philipp Ambach is the Special Assistant to the President of the International Criminal Court. The views expressed are those of the author alone and cannot be attributed the International Criminal Court.] The vast majority of armed conflicts of our times is, if not based on, at least closely tied with the economic interests of the belligerent parties or stakeholders behind the scenes. Business corporations which maintain trade relations with partner groups or entities that are, at the same time, engaged in an internal or international armed conflict may become directly or indirectly involved in the commission of serious crimes. Many international corporate actors provide financial resources to regional armed groups through the trade of goods that are the product of exploitation of natural resources in conflict zones, such as gold, diamonds, oil, uranium and other precious or strategic resources (so-called ‘resource wars’). These economic transactions often destabilize the region affected by armed conflict and even put oil on the fire of a looming conflict if the economic transactions serve to strengthen one or the other or both warring parties in the conflict. Those economic actors involved may incur criminal liability if they are aware that their goods or funds serve to provide these armed groups with weapons or other means of warfare subsequently used against civilians. The crimes committed may amount to international crimes such as war crimes, crimes against humanity or genocide. In such cases, corporate actors may even come under scrutiny by the International Criminal Court (‘ICC’) for their participatory role in such crimes, if the individual criminal liability of the person(s) in control of such financial transactions on behalf of a corporate actor can be established. International courts and tribunals have devoted little to no attention to the issue since the post-World War II criminal proceedings held against German businessmen who had been economically involved in the war (See the discussion by Nerlich). Also the UN ad hoc-Tribunals for the former Yugoslavia and for Rwanda, set up in the mid-nineties, and the ICC (which became operational in July 2002) have been set up to try individuals for international crimes; their statutes do not provide for criminal liability for corporate actors, as they are based on the principle of individual guilt for criminal conduct (nulla poena sine culpa). In contrast, companies have a corporate (not: individual) identity and are legally best described as ‘legal persons’ - to which the concept of individual guilt cannot easily be ascribed. However, even in larger corporations decisions on specific transactions are being taken by a rather small panel of senior stakeholders who are heading the corporation. Despite their remoteness from the crimes committed on the ground, individual criminal liability may attach to them if each individual only knew that the immediate effect of their business transaction would be the (continued) commission of crimes. Individual criminal liability of representatives of corporations for international crimes can be ascribed broadly in two forms: either the company representative acts in close cooperation with his or her business partners as a co-author of crimes commonly envisaged; or the individual corporate actor’s contribution to the crime is of an auxiliary nature while the design and control over the crime is left to the business partner.
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02 Oct

[William W. Burke-White is Deputy Dean and Professor of Law at University of Pennsylvania Law School.] I am delighted to have this opportunity to engage with the excellent chapter by Gleider Hernandez on the interaction between investment law and the law of armed conflict. The chapter makes an important contribution to an under-studied area of law, namely the interplay of international investment law and other specialized subfields, particularly international humanitarian law. I am hopeful that this chapter will open a broader discussion in this space, which is of both significant jurisprudential and practical consequence. Let me say at the start that I agree with Gleider’s overall approach. Both international investment law and international humanitarian law are specialized sub-fields of public international law, both fields frequently reference public international law generally, and both should be treated as part of the broader system of public international law. Perhaps as a consequence of the growing depth of particular subfields of international law or the nature of issue-specific scholarly inquiry today, all too often fields such as these are studied in isolation. As a result, their interactions are often overlooked and possibilities for mutual synergy (or conflict) are neglected. I credit Gleider (and the editors and contributors of the volume as a whole) for taking on these interactions directly and examining closely the way these fields overlap and interact. Turning to the substantive question, however, I would take a somewhat different approach.
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02 Oct

[Dr Gleider I. Hernandez is a Lecturer at Durham Law School] I am grateful to the organisers of this symposium on the collection, edited by Dr Baetens, on the interaction of international investment law (‘IIL’) with other areas of public international law (‘PIL’). Broadly speaking, I identify as a ‘generalist’ international lawyer, one who is interested in the system as a whole and how its organs and agents grapple with emerging problems of global governance. As such, when I was approached in 2011 to consider and address the interaction between two specialised regimes within international law, I leapt at the opportunity to consider how the law of armed conflict, and specifically, international humanitarian law (jus in bello or ‘IHL’), a distinct legal regime that, in its modern form, has been developing through multilateral treaty practice for well over a century, would be considered within the sphere of international investment law, a relatively new area of international law that has blossomed in the last two decades, yet primarily through bilateral treaty practice and through a rich body of case law. The results were very interesting. With abundant treaty practice in which bilateral investment treaties (BITs) embedded variously-termed clauses providing for protection and security in various forms, the interaction and possible conflict of norms between these two specialised regimes was inevitable. Indeed, factually speaking, a substantial portion of modern investment disputes have arisen precisely through the continued scourge of armed conflicts between and within States. As such, two questions needed to be considered: first, the manner through which public international law has addressed and considered the effects of armed conflicts on rights and obligations, and whether generalised, abstract rules and principles can be distilled; and secondly, whether practice in the area of investment law—specifically treaty practice in BITs and the interpretation of such treaties by specialised investment tribunals—could be said to be in harmony with the general international law framework.
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01 Oct

Ryan has kindly responded to my post commenting on his claim that "arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict." Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim....

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01 Oct

[John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law] In a recent article posted to SSRN, and introduced by Duncan here, Professors Sarah Cleveland and Bill Dodge (“the authors”) have done us all a great service in unearthing the history of the Offenses Clause and its inclusion of U.S. treaty violations.  Although I was originally suspect of their claim that the Offenses Clause empowers Congress to punish all U.S. treaty violations, as was obvious in my comments to Duncan’s post, I ultimately found myself convinced of this aspect of their thesis. The persuasive evidence they marshaled to support this broad claim, however, caused me to question the rather uncertain limitation that they later placed on it: that conduct being punished pursuant to the Offenses Clause “must itself be condemned in some manner under international law.”  (p. 3, all bare page references are to draft article)  Further to this point, the authors posit that the Offenses Clause allows Congress to punish “when: (1) a treaty operates directly to prohibit the conduct; (2) a treaty expressly mandates that states punish the conduct; (3) a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment; [or] (4) a treaty authorizes punishment under international law, even if it does not require it.  In all such cases, however, it must be international law that condemns the relevant conduct, at least in general terms….”  (p. 53). The intent behind these proposed limitations is laudable: to circumscribe what might otherwise be construed as virtually limitless congressional authority to regulate domestic matters potentially implicating U.S. treaty obligations.  Much of the evidence the authors offer in support of the broader claim seems to potentially undermine these limitations, that is, depending upon exactly what they intended to exclude.  (I, for one, would welcome the authors to provide examples of treaty provisions excluded by their proposed limitations.  In establishing their broader thesis the authors cited even congressional reliance upon what appear to be hortatory provisions of the U.N. Charter.  See p. 34). Throughout the article, the authors rely on founding era and other evidence supporting a purposeful reading of the Offenses Clause. To summarize: (1) the Offenses Clause reaches treaty infractions because treaties, even bilateral treaties, become part of the law of nations; and, (2) the Offenses Clause was enacted so that Congress may ensure national compliance with the law of nations, including U.S. treaty obligations.  They present an abundance of pre- and post-constitutional evidence to support this broad thesis.  And they recognize that the law of nations applies not only to a state acting in its corporate capacity but also to its members acting individually.  Thus, the act of a single person may, in the proper context, place a nation in violation of its international obligations. In such circumstances, it would seem, the Offenses Clause allows regulation of any such act. Indeed, the authors’ evidence strongly suggests that a relevant provision of international law need not “address” if this means to some affirmative extent, even generally (unless exceptionally generally), the precise conduct Congress is regulating pursuant to the Offenses Clause.  Any conduct capable of violating a treaty obligation in a proper context is susceptible of regulation.  To say that the law of nations includes treaties is to say that every act that results in a treaty violation is “condemned” by the law of nations.  Thus, it seems redundant for the authors to suggest, as a limitation, that “it must be international law that condemns the relevant conduct, at least in general terms.” And it seems internally inconsistent to require that “a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment.”  Violation of a general treaty provision may occur in myriad ways not mentioned or even contemplated at the time the relevant treaty was drafted and adopted.
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01 Oct

[Kathleen Claussen is a Legal Counsel at the Permanent Court of Arbitration. The views expressed in this post are those of the author only and do not reflect any view of the Permanent Court of Arbitration or its staff.] Vid Prislan’s chapter on non-investment-treaty obligations in investment treaty arbitration tackles a common issue in tribunal decisionmaking that has not been fully theorized or understood. His work advances that effort by examining ways in which tribunals take account of non-investment-treaty obligations and by acknowledging that these methods may be viewed as insufficient for responsible administrative governance on the part of state actors. Thus, he concludes that states should undertake efforts to amend treaty language so as to accommodate all their obligations and interests and to “ensure greater predictability and coherence in the interpretation of treaty terms.” Prislan’s chapter touches on two important themes. On one hand, the chapter is a commentary on state obligations. It speaks to how states can better manage their international obligations, as well as their domestic obligations, with an eye toward avoiding conflicts between them. From a second angle, Prislan makes a contribution to the debate on the future of the international investment law “system” or “regime.” On either reading, the chapter provides some useful takeaways; this short post makes some brief comments on each. Prislan focuses on the conflicts he perceives between and among treaties and domestic law. He outlines ways through which these perceived conflicts might be resolved using interpretative tools. Certainly, others would argue that investment treaties in particular are designed with that in mind to allow states to maintain many of their obligations through exception provisions or through clauses permitting a state to accept liability by compensating an investor in full, and thus, what Prislan views as “conflicts” are in fact provided for in the instruments themselves, even if only implicitly. Prislan nevertheless sets out to sketch a means of harmonizing state obligations in an effort to avoid asking arbitral tribunals to reconcile or resolve seemingly incompatible obligations. In so doing, Prislan emphasizes the limited flexibility of arbitral tribunals – limited by the scope of interpretative methods. An equally interesting discussion could be raised as to who should decide how perceived conflicts among instruments will be resolved. Interpretative tools are not limited to the use of arbitral tribunals; rather, reconciliations among competing obligations are made by a wide range of actors. At least for purposes of his chapter, Prislan accepts that arbitral tribunals are the default interpreters without questioning the larger design that sets up tribunals as the front line of decisionmaking. Have states made a mistake in electing to have these matters resolved by a panel of three non-governmental decisionmakers rather than an apparatus among the government’s own administrative machinery? Perhaps what underlies Prislan’s analysis is a recommendation that states take themselves out of such now common dispute resolution mechanisms where such competing obligations are managed in these ways. This consideration brings us to think about another reading of Prislan’s chapter: as a commentary on the future of the investment system.
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01 Oct

[Vid Prislan is a Research Fellow PhD-candidate at the Grotius Centre for International Legal Studies of Leiden University] First of all, I would like to thank the editors of Opinio Juris for providing me with the opportunity to briefly present the arguments which I raise in my chapter in Investment Law within International Law: Integrationist Perspectives. My chapter deals very broadly with the issue of non-investment obligations in investment treaty arbitration. It does so by exploring how investment tribunals can consider (and take into account) arguments based on sources of obligations other than those under investment treaties. The possibility of considering non-investment obligations has occasionally been questioned by reference to the limited jurisdictional competence of investment tribunals. Indeed, the jurisdiction of these tribunals is not unqualified, but limited by the extent to which the States assented to it in the underlying investment treaty – that is, potentially confined only to pronouncing upon alleged violations of the substantive rights under the treaty. Yet, I argue, first of all, that jurisdictional limitations do not necessarily restrict the scope of the law applicable to the dispute. In most cases, in fact, investment tribunals will enjoy broad latitude with regard to the scope of the legal rules that they are entitled to apply, which makes it possible for them to consider, and indeed apply, obligations other than those under the treaty. Second, I contend that investment agreements were not conceived as self-contained regimes, and therefore, cannot be applied in isolation of other rules and principles of international law. In particular, I argue that, at the very least, rules of customary international law, as well as general principles of law remain applicable, to the extent that their application has not been excluded by the investment treaty as lex specialis. Even if one accepts that jurisdictional limitations potentially prevent investment tribunals from directly adjudicating upon claims based on non-investment obligations, there is no impediment for investment tribunals to consider these rules when constructing the meaning of the substantive protections laid down in an investment treaty. I suggest that some of the jurisdictional limitations may be overcome by taking account of non-investment obligations in the process of interpreting the provisions of the investment treaty. I focus specifically on three interpretative techniques that can be applied by investment tribunals for this purpose.
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01 Oct

[Nicolas Hachez is a PhD student at the institute for International Law and Leuven Centre for Global Governance Studies and Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven).] First of all, we would like to thank Prof. Treves for his kind words on our chapter, and for his very interesting ‘think outside the box’ comments. Prof. Treves’ observations contain three main points:
  • Alternative dispute resolution mechanisms as an alternative to arbitration
  • The recent denunciation of the ICSID convention by a number of state parties
  • The possibility to mirror the ‘prompt release’ procedure set out in art. 292 of the UN Law of the Sea Convention in international investment law.
We will address Prof. Treves’ points in that order.
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01 Oct

[Tullio Treves is a Professor of International Law at the University of Milano and a Public International Law Consultant at Curtis, Mallet-Prevost, Colt & Mosle LLP in Milan] This chapter is entitled “International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?” It is a detailed and well reasoned review of the criticisms raised against arbitration as the  mechanism dominating the settlement of international investment disputes, of the steps already taken or underway to attenuate the negative aspects addressed by such criticism, and of the more ambitious reforms that have been proposed. Among the criticisms addressed are the following: that the arbitral model “fails to live up to the basic precepts of democracy and the rule of law” and shows a lack of consideration of the public nature of the interests involved;  that there exists a real or perceived bias of arbitrators (and of the arbitrators’ appointing authorities) in favor of investors due inter alia to the fact that many arbitrators are at the same time practicing lawyers in law firms which may have to cater to the interests of other clients not involved in the specific dispute; that the process lacks transparency; that contradictory decisions  involve a risk of fragmentation. Notwithstanding these criticisms, the authors’ “interim conclusions” are that “arbitration works well most of the times” but that “in view of the requirements of the rule of law and in light of the public interest, ‘working well most of the time’ is not enough” (p. 434). The  “current reforms” examined by the authors and aimed at overcoming the criticisms concern transparency and the participation in proceedings by “non-parties” such as public interest non-governmental organizations as amici curiae. The assessment of the authors is summarized in the relevant chapter’s title: “too little, too late” and further elaborated  explaining that: “these reforms are unlikely to resolve the legitimacy crisis by themselves. … the transparency reforms remain subject to the consent of the parties and therefore do not institutionalise transparency per se” (p. 438). The more ambitious proposals for reforming the system are considered in a chapter entitled “Doing away with arbitration?”. As a matter of fact, only a short passage about alternative disputes resolution methods (as mentioned in the US Model BIT) concerns alternatives to arbitration. Most attention is given to the proposals, which are far from being accepted so far, for eliminating from investment agreements the exclusion of the exhaustion of local remedies rule and for introducing an appellate level, possibly through  an institutionalized permanent body. The newly acquired European Union competence in the field of investment is seen as a factor that  might change the present situation in which important reforms (including that concerning an appellate body) seem impossible. In a chapter on “Doing away with arbitration?”, one could have expected a discussion of the implication of recent denunciation, by various States, of the ICSID Convention and of BITs, which seems to me the most radical aspect of recent practice for “doing away with arbitration”.
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01 Oct

[Nicolas Hachez is a PhD student at the institute for International Law and Leuven Centre for Global Governance Studies and Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven).] This chapter, entitled ‘International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?’ takes a close look at the arbitral mechanism which is the preferred dispute settlement mode in investment disputes between foreign investors and host states, and reviews the criticism which arbitration is currently facing in this context. The starting point of such criticism is that investor-state disputes concern questions of public law as they allow for the review of domestic legislations. Arguably, the arbitral model would not be suitable to settle disputes which directly engage the public interest. The argument is usually articulated around the following concerns:
  • The arbitral model is designed after commercial arbitration and would fail to live up to the rule of law requirements of administrative review. This is evidenced notably by the fact that arbitral proceedings are one-off procedures not amenable to appeal, thereby allowing for inconsistent decisions, or by the fact that proceedings involving questions of public interest are untransparent as confidentiality is the rule in commercial arbitration.
  • Arbitral tribunals would lack independence, as there are no incompatibilities for arbitrators and remuneration by the claim would be an encouragement for arbitrators to take legal positions that encourage the lodging of future claims and therefore increase the arbitration business. Likewise, it has been noted that a number of arbitrators are also practicing lawyers regularly advising multinational corporations, and would therefore have an interest to adopt pro-investor decisions so as to serve the interest of their clients.
  • Arbitrators would lack impartiality, as the arbitral system would be structurally biased towards investors’ interests and towards the application of investment disciplines even when they potentially conflict with other bodies of international or domestic law.
The result of such deficiencies would be that the arbitral model for settling investor-state disputes disregards issues of public interest which such disputes naturally entail, and would be biased towards preserving the private economic interests of foreign investors. In the face of such criticism, the international investment arbitration regime (notably under the impulsion of ICSID, UNCITRAL, the PCA, and through the amendment of certain investment treaties like NAFTA) underwent reform under several counts aiming at increasing consideration of issues of public interest: 
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