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International Courts and Dispute Resolution

An Important Absence in the Syria War Crimes Accountability Act of 2017

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

(a) IN GENERAL.—The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and violent extremist groups in Syria beginning in March 2011—

(1) identify suspected perpetrators of war crimes, crimes against humanity, and genocide; (2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence; (3) conduct criminal investigations; (4) build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power; (5) support investigations by third-party states, as appropriate; or (6) protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.

There a very interesting — and potentially very important — absence in Section 7(a). As the bolded text indicates, the paragraph only authorises the US to provide technical assistance to entities that are investigating international crimes committed by pro-Assad forces and “violent extremist groups.” Note what is missing from that construction: Syrian rebel groups. The bill does not permit the US to support any entity investigating war crimes, crimes against humanity, and acts of genocide committed by rebels.

Lest anyone think I am reading Section 7(a) too narrowly, consider the wording of Section 3(1), which summarises acts that the US “strongly condemns” (emphasis mine):

(A) the ongoing violence, use of chemical weapons, targeting of civilian populations with barrel, incendiary, and cluster bombs and SCUD missiles, and systematic gross human rights violations carried out by the Government of Syria and pro-government forces under the direction of President Bashar al-Assad; and (B) all abuses committed by violent extremist groups and other combatants involved in the civil war in Syria.

It is difficult to see who “other combatants involved in the civil war in Syria” might be if they are not rebels. Indeed, Section 5(a), which requires the Secretary of State to submit a report on international crimes to Congress, explicitly distinguishes between “violent extremist groups” and rebel groups (emphasis mine):

(b) ELEMENTS.—The reports required under subsection (a) shall include— (1) a description of alleged war crimes, crimes against humanity, and genocide perpetrated during the civil war in Syria, including— (A) incidents that may constitute war crimes, crimes against humanity, or genocide committed by the regime of President Bashar al-Assad and all forces fighting on its behalf; (B) incidents that may constitute war crimes, crimes against humanity, or genocide committed by violent extremist groups, anti-government forces, and any other combatants in the conflict.

In light of Section 5(a), it is clear that Section 7(a) does not authorise the US to support an entity that is investigating international crimes committed by rebels.

That said, the bill is unclear in one important respect: whether the US can support an entity that investigates international crimes committed by both pro-Assad forces and rebel groups. On a literal reading of Section 7(a), the answer would seem to be no. But the sponsors of the bill might disagree. Journalists?

I agree with Beth that the Syria War Crimes Accountability Act of 2017 is an important step forward for accountability in Syria. Unfortunately, it also reflects the US’s tendency to take international crimes committed by rebel groups much less seriously than those committed by Assad’s forces and by ISIS.

IHL Does Not Authorise Detention in NIAC: A Response to Murray

by Kevin Jon Heller

Over the past couple of years, a number of scholars — including me — have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. As the article’s abstract makes clear, Murray is firmly in the “IHL authorises” camp:

On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups.

I disagree that IHL cannot regulate non-state actor (NSA) detention in NIAC unless it authorises that detention, for reasons I will explain in this post. Before we get to Murray’s argument, however, it is important to remind ourselves of what is at stake in the debate. Put simply, if Murray is right and IHL authorises NSAs to detain, two significant consequences follow: (1) states have no right to prosecute NSAs who detain government soldiers, even if such detention would qualify as kidnapping or wrongful imprisonment under domestic criminal law; and (2) NSAs have the right to detain government soldiers for as long as they pose a “security threat” to the NSA — ie, essentially forever. In other words, FARC could detain a Colombian soldier for five decades and Colombia couldn’t prosecute the commander responsible for that detention as long as FARC complied with NIAC’s procedural restrictions on detention.

Now let’s turn to Murray’s argument. Here are the critical paragraphs in the article:

[I]nternational law cannot regulate activity that is subject to an absolute prohibition. For example, instances of torture cannot be regulated as torture is subject to an absolute prohibition. The same is true with respect to armed group detention in non-international armed conflict: the absolute prohibition of arbitrary detention precludes the possibility of regulating arbitrary detention (p. 9)

Two possibilities are open: either international humanitarian law establishes an implicit legal basis for detention, or it does not and the authority to detain must be established elsewhere. If international humanitarian law does not establish an implicit legal basis for detention then all instances of detention by armed groups will necessarily violate the prohibition of arbitrary detention as a legal basis for armed group detention does not exist under domestic law or elsewhere in international law. Yet, to interpret Common Article 3 and Article 5 Additional Protocol II in this way is to conclude that states have developed international treaty law to regulate detention operations by armed groups, despite the fact that all instances of armed group detention are illegal. This interpretation is incapable of giving effect to states’ intentions, and to the object and purpose of the provisions themselves. As discussed above, states cannot regulate that which is absolutely prohibited, and so the only means by which Common Article 3 and Article 5 Additional Protocol II can regulate detention by armed groups is if these provisions establish an implicit legal basis for that detention  (p. 14)

The first thing to note is that the torture analogy is misplaced. International law does indeed absolutely prohibit torture. But it does not absolutely prohibit detention — not even in NIAC. On the contrary, a state is free to detain as long as it adopts the necessary domestic legislation. It is even free to domestically authorise an NSA to detain, as well. (Which is not absurd. A state may well conclude that an NSA is more likely to treat captured government soldiers humanely if it does not prohibit the very act of detention.) So what Murray is actually arguing is that because most states choose not to authorise NSAs to detain, international humanitarian law (IHL) necessarily authorises it for them so they can regulate that detention. That’s a very puzzling claim, given that states are the authors of IHL.

The fundamental problem with Murray’s position, however, is that it is simply not the case that IHL can’t regulate a practice that international law absolutely prohibits. I will discuss in a minute the situation regarding detention in NIAC, in which the regulation and the prohibition come from different legal regimes — regulation from IHL, prohibition from international human rights law (IHRL). But before doing so, it is worth noting that Murray’s argument does not work even when the regulation and the prohibition come from the same legal regime — a situation in which you would think Murray’s argument would be even stronger…

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Dear Mr President: 40% of Zero is Zero

by Kevin Jon Heller

Kill me:

Funding will be taken away from any organisation that is “controlled or substantially influenced by any state that sponsors terrorism” or is behind the persecution of marginalised groups or systematic violation of human rights.

The order has singled out peacekeeping, the International Criminal Court and the United Nations Population Fund. The UNPFA targets violence against women, fights to keeps childbirth and abortion, where it is legal, safe, and was a key presence in safeguarding women in Haiti following Hurricane Matthew.

The order demands decreasing US funding towards international organisations by at least 40 per cent. Mr Trump has included the International Criminal Court here, yet the US currently pays nothing to the ICC.

When asked why he wants to reduce funding to an organisation the US doesn’t fund, President Trump reportedly responded, “the Prosecutor, Frederick Douglass, is a rabble-rouser.”

Symposium on Asia and International Law

by Chris Borgen

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article.

The article’s abstract explains:

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.

The symposium will begin on Monday with an opening post by Professor Chesterman, followed by posts on Opinio Juris by Professor Tony Anghie of the National University of Singapore and on EJILTalk by Professor Eyal Benvenisti of Cambridge University.  On Tuesday, Opinio Juris will have commentary by Professor B.S. Chimni of Jawaharlal Nehru University and EJILTalk will have a piece by Professor Robert McCorquodale of the University of Nottingham and the Director of the British Institute of International and Comparative Law.   Wednesday will have observations and reactions on Opinio Juris by Judge Xue Hanqin  of the International Court of Justice and on EJILTalk by Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea. Finally, there will be a closing post pn both blogs by Professor Chesterman on Thursday.

We hope you will join us on both blogs for the discussion.

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

My friend Lianne Boer, who recently finished her PhD at VU Amsterdam, has just published a fantastic article in the Leiden Journal of International Law entitled “‘The greater part of jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship.” Here is the abstract:

This article portrays the use of consensus claims, as well as their substantiation, in the debate on cyber-attacks and Article 2(4) of the UN Charter. Focusing on (re)interpretations of the prohibition on the use of force in the light of cyber-attacks, the article first shows how scholars appeal to the ‘majority opinion’ of scholars or the ‘generally accepted’ interpretation of the norm. It points out the different uses of these ‘consensus claims’, as I refer to them, and what scholars invoke exactly when referring to this elusive majority. Elaborating on this ‘elusive’ nature of consensus, I argue that the appeal of a consensus claim lies precisely in its invocation of a fairly mystical ‘out there’. Consensus, as it turns out, evaporates the moment we attempt to substantiate it, and this might be precisely where its strength lies. The second part of the article thus shifts focus to how these claims are substantiated. An empirical inquiry into the footnotes supporting consensus claims reveals that, most of the time, writers refer to the same scholars to substantiate their claims. Making use of Henry Small’s idea of ‘concept symbols’, the article argues that these most-cited scholars turn into the ‘bearers’ of majority opinion. On the level of the individual academic piece, the singular reference might appear to be fairly innocent. Yet, when considered as a more widespread practice of ‘self-referentiality’, it seriously impacts who gets a say – and thus, ultimately, what we know – in international law.

This is truly innovative scholarship — the kind of work that makes you ask yourself, “why didn’t I think of that?” Well, Lianne did think of it. And I hope her article, as well as her dissertation, spurs similar work in other areas of international law.

Read Boer!

Call for Papers: ICTY Legacy Conference

by Kevin Jon Heller

As part of its “ICTY Legacy Dialogues” events, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) is organising in the week of 19 June 2017 a conference on the legacy of the ICTY in Sarajevo, Bosnia & Herzegovina. We invite your participation.

With the ICTY’s closure scheduled for 31 December 2017, the conference aims to enable others to build on the achievements of the ICTY over its 24 year history. The vision is for a series of dynamic dialogues with actors who can take what the ICTY has developed into new areas, with a particular focus on the role of national actors. The conference will explore how the work of the ICTY can inform responses to atrocities and international crimes at a national level in a number of fields.

Examples of topics to be addressed include:

  • Institutional and Administrative Legacy e.g. Witness protection and support – post testimony support: needs and resources; reparations and victim status; gender sensitive witness support.
  • Normative Legacy – Synergies, cross-fertilization, and discrepancies between the jurisprudence of the ICTY, national jurisdictions, regional courts, and other international courts and tribunals; with a special focus on: how ICTY jurisprudence has influenced national jurisdictions, for instance in the region of the former Yugoslavia; and how domestic law and jurisprudence has informed international justice.
  • Operational Legacy/Complementarity – Challenges faced by the Office of the Prosecutor in investigating and prosecuting conflict-related crimes, including challenges in building leadership cases and obtaining access to evidence; OTP’s capacity building challenges and outcomes; perspectives on operational challenges facing national jurisdictions and potential/demonstrated solutions (including through lessons learned and applied from OTP’s experience).
  • Legacy on Access to Justice for Women – The evolution of jurisprudence on conflict-related sexual violence; participation of women in the justice process; working with NGOs and civil society to identify witnesses; protection of sensitive witnesses/victims; compensation mechanisms for sexual violence victims in national jurisdictions.
  • Participatory Legacy – Defence in international criminal trials at international and national courts; defence investigations; defence organizations and offices; rights of the accused.
  • Historic Legacies – Historic value of the extensive records of the ICTY; records as a means of combating denial; access to ICTY records and archives in the region; importance of user friendly information sharing and judicial databases.
  • Non-Judicial Legacy – The ICTY and its limitations; to what extent can a judicial institution contribute to peace and reconciliation; how to fill the gap through non-judicial mechanisms; the importance of memorialisation and the consolidation of the rule of law through capacity building.
  • Leaving a Legacy: Outreach Activities – What should be the scope and goals of outreach on the ICTY legacy after the closure of the Tribunal; what are the needs of local communities in respect of the ICTY’s legacy; what are the responsibilities of different societal actors – e.g. politicians, journalists, the legal community, civil society?

Those interested in presenting a paper at the conference should submit an application via email to the ICTY Legacy Committee at: ictylegacypapers [at] un [dot] org

Applications must include:

  1. A 300-word abstract of the proposed paper;
  2. The author’s name, title, and affiliation (if any);
  3. The author’s curriculum vitae/résumé; and
  4. The author’s contact details including phone number and email address.

All applications must be received no later than 15 December 2016.

Successful applicants will receive by approximately 15 January 2017 an invitation to submit a full paper, and first drafts of papers will be expected to be submitted by 15 April 2017. Submission of an application will be considered as acknowledgement that the author is available to be in Sarajevo (or other regional access point) in June 2017 to participate in the conference. Subject to securing sufficient funding, the ICTY will endeavour to cover travel and/or accommodation costs of successful applicants.

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at FP.com: The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.

New Article on SSRN

by Kevin Jon Heller

I have posted a short article on SSRN, entitled “Taking a Consenting Part: The Lost Mode of Participation.” Here is the abstract:

This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using Hadžihasanović at the ICTY as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

As always, comments welcome!

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

The Media Spotlight on Investor-State Dispute Settlement Just Got a Lot Brighter

by Julian Ku

Buzzfeed’s Chris Hamby is out today with the first installment of a promised four-part investigative report into the system of investor-state dispute settlement (ISDS).  Like all such reports, it needs a spectacular headline and summary to draw clicks, and this one’s a doozy:

The Court That Rules the World

A parallel legal universe, open only to corporations and largely invisible to everyone else, helps executives convicted of crimes escape punishment.

The article itself is much more fair and thorough than this ridiculous headline teaser suggests.  It contains lots of original reporting on three ISDS cases involving Egypt, El Salvador, and Indonesia where Hamby says actual or threatened ISDS actions allowed corporate executives to escape criminal punishment.

I have no reason to doubt the accuracy of Hamby’s reporting on these cases. But I do have two initial somewhat critical reactions:

  • ISDS does give foreign investors leverage with host nations like Egypt or El Salvador that they wouldn’t otherwise have.  But I think Hamby overstates the amount of leverage a real or threatened ISDS claim creates.  Foreign governments don’t immediately comply with all ISDS awards and collecting judgments against foreign sovereigns, even weak ones like Egypt or El Salvador, is no easy task given those states’ sovereign immunity legal defenses and the difficulty of seizing state-owned assets.  Moreover, research shows that ISDS shows that states win more often than investors do, or they at least prevail as often as investors do. (See Footnote 3 to this letter defending ISDS as well as this EU Commission report).  ISDS may have allowed some foreign investors to unjustly avoid liability for their actions, but it is hard to know (and Hamby’s article cannot prove) that such cases represent a majority, or even a meaningful percentage, of overall ISDS actions.
  •  I don’t have a problem with Hamby reporting on these cases where it seems ISDS has been abused.  But I think it is important to keep the larger context of ISDS in mind.  What would be the impact of not having ISDS at all?  Would it make cross-border investment less common?  A lot less common?  Would the elimination of ISDS result in more corruption as foreign investors feel a need to pay protection money to host countries rather than resort to legal means?  Would the elimination of ISDS result in simply more cross-border investment among “rich” countries with well-developed domestic legal systems such as the US and Europe to the exclusion of “poor” countries with developing legal systems?  In other words, ISDS may be bad in many ways, and much abused (although I doubt the abuse is as common as Hamby intimates), but would eliminating ISDS be worse?

I am not an uncritical cheerleader for ISDS. I am doubtful, for instance, that ISDS adds much to the (now pretty much dead) proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US.  And I have questioned the constitutionality under US law of the ICSID Convention’s requirement of automatic enforcement of ISDS awards.   But I do feel ISDS critics should eventually have to answer the question: If not ISDS, then what? And will that non-ISDS future be better or worse? Hopefully, one of Hamby’s remaining three parts will address this important policy issue.