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Guest Post: Argentina v. NML Capital – Does the Foreign Sovereign Immunities Act Mean More Than It Says?

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project, for which he was compensated.]

The Supreme Court considered on Monday whether a U.S. court can order disclosure of Argentina’s worldwide assets.  Perhaps surprisingly, the answer should be yes.

The underlying facts of Republic of Argentina v. NML Capital are straightforward.  Argentina issued bonds, which were bought by private investors including NML, and then defaulted.  In the bond contracts, Argentina waived its sovereign immunity and consented to jurisdiction in New York.  After the default, NML sued Argentina in New York, as the bond contracts contemplated.

The Foreign Sovereign Immunities Act (FSIA) says that foreign governments can be sued in the U.S. only in circumstances listed in the statute.  One of those circumstances is when the sovereign waives its immunity by contract.  So there’s no question that NML could sue Argentina.

The question, rather, is what NML could do once it won (as it did) and Argentina still refused to pay (as it did).  The FSIA also says that creditors cannot execute on (seize) foreign sovereign assets in the United States to satisfy a judgment unless the assets are being used in a commercial capacity.  NML asked the trial court to order two New York banks that handle Argentina’s finances to disclose what they knew about Argentina’s assets (commercial or otherwise).  Argentina, supported by the U.S. executive branch, claims this violates the “spirit” of the FSIA.

It doesn’t.  The FSIA (Section 1609) specifically protects non-commercial sovereign assets only against “arrest attachment and execution.”  It does not say assets are immune from disclosure.  There’s a good reason it doesn’t: to figure out which assets are used for commercial purposes, and thus subject to execution, first one needs to know what assets exist.  It obviously won’t do to have Argentina – or Argentina’s bankers – make an unreviewable judgment as to which assets are commercial and not disclose the others.  And in other respects, the FSIA (Section 1606) says, a non-immune sovereign shall (subject to exceptions not relevant here) “be liable in the same manner and to the same extent as a private individual under like circumstances.”

Thus, as a number of Justices appeared to recognize at oral argument, the key law isn’t the FSIA but Rule 69 of the Federal Rules of Civil Procedure, which govern ordinary litigation in federal court.  Rule 69 allows a federal court to order discovery in support of execution, which is what the trial judge did here.  The rule doesn’t have any limits on the type of property or the geographic limits – rather, its leaves the matter to the discretion of the court.  In private litigation, courts acting under Rule 69 routinely require disclosure of assets outside the jurisdiction or arguably not subject to execution.

At oral argument, some Justices seemed troubled that Argentina (or other sovereigns) might have to disclose the location of sensitive diplomatic or military assets.  It’s a fair concern, but no reason to make the FSIA say something it clearly does not.  First, district courts are adept at balancing all sorts of competing interests that arise in discovery disputes and in allowing only discovery appropriate under the circumstances; Rule 69 gives them plenty of discretion to do so.  Second, the only disclosures the trial court required here are of financial transactions (and the order isn’t even directed to Argentina, but rather to third-party banks); no one is asking Argentina to disclose the location of, for example, specific military assets.  And third, presumably disclosures could be made confidentially to the court as needed for particular assets.

Moreover, NML claims that Argentina has shown its willingness to abuse institutions like the Bank of International Settlements to shield its assets from creditor judgments.  That’s what NML’s attorney Ted Olson was speaking of when he said at one point during Monday’s proceeding that Argentina could slap an air-force label on a commercial airplane in order to shield that asset.  He wasn’t talking about NML attaching non-executable assets, he was simply pointing out the danger of creating loopholes in the discovery process that would allow Argentina to deny discovery on assets that creditors would be entitled to.

This goes to the heart of why NML has a need for the disclosures.  Argentina has openly refused to pay the judgment against it.  NML is entitled to execute on Argentina’s commercial assets in the United States, and may be able to execute on some non-commercial assets elsewhere (in jurisdictions that lack the U.S.’s commercial limit).  To do so, it needs to know what assets exist, and it cannot rely on Argentina’s self-reporting of which assets are commercial.

Ultimately the rule of law, especially in international transactions, depends on courts holding parties to their promises and providing a way to enforce judgments.  If Argentina didn’t want to be subject to U.S. court enforcement, then it should not have waived its immunity and consented to jurisdiction (but, of course, then it would have had much more difficulty selling its bonds).  Argentina could still avoid unwanted disclosures by doing what it is supposed to do anyway: pay the entirely valid judgment against it.

The rule of law also depends on courts reading statutes to mean what they say, and not more than they say.  Argentina is asking the Court to find an immunity in the FSIA that simply isn’t there.  Argentina’s protection instead comes from Rule 69 – but it’s a protection that rests largely with the lower court, which knows the case better and is better able to balance competing equities on an on-going basis than the Supreme Court.  It may be helpful for the Court to ask district courts to use careful discretion in managing disclosure requests directed at a foreign sovereign under Rule 69. For instance, the Justices could recommend that district court judges ask the sovereign to create a privilege log (or a similar mechanism) for those assets, such as military property, that are extra-sensitive. This would balance the interests of the sovereign and the creditors. But creating a blanket protection against disclosure of assets under the FSIA is contrary to both the statute and the needs of the international rule of law.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Did the U.S. Infiltration of Chinese Company Huawei Violate International Law?

by Julian Ku

Just in time for Michelle Obama’s speech in Beijing extolling the benefits of free speech and a President Obama/President Xi summit, the NY Times published an article detailing how the U.S National Security Agency infiltrated the systems of Chinese telecom infrastructure giant Huawei.  According to documents the Times obtained from the Edward Snowden leak, the NSA “obtained information about the workings of the giant routers and complex digital switches that Huawei boasts connect a third of the world’s population, and monitored communications of the company’s top executives.”

From a legal perspective, there is no doubt that this is a violation of Chinese laws and an example of how the U.S. government is doing what it is alleging the Chinese government is doing to U.S. companies. There also seems little doubt that this action is clearly legal under U.S. laws, as the U.S. government has broad and largely unchecked authority to conduct surveillance of foreign nationals in foreign countries.  But is the action illegal under any international laws?

I am doubtful that such snooping could violate any international right to privacy, even if such a right existed.  The ICCPR might provide such a right, but it may or may not apply extraterritorially, and even if it did, it probably doesn’t restrict this kind of activity.

This essay in the Global Times, a hawkish Chinese-state-affiliated newspaper, suggests that such activity could also constitute an attack for the purposes of the law of war.  The author, a U.S.-based writer, argues that “launching attacks under another nation’s flag has long been seen as illegal under both codified law and international custom. In such a case, Chinese nationals would face financial and possibly physical risk, especially if US involvement remained undetected.”

I think this would be a stretch under the laws of war. Is snooping around in Huawei’s servers an “act of violence” within the meaning of the Geneva Convention? I don’t think walking into Huawei’s offices and ruffling through their papers is an act of violence. Taking down their servers, or planting viruses to disable those servers or related activities might be an act of violence, but even that seems a bit of  stretch under current international laws.

So the U.S. may have spied, but it cannot be said to have “attacked” China, in its reported Huawei infiltration.  As a matter of international law, the reported actions appear to be legal, even if they were unwise or hypocritical.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

Using Trade Remedies to Enforce Arbitration Awards: The WTO-Compliance Question

by Roger Alford

Simon Lester has a thoughtful response to my earlier post about using trade remedies to enforce arbitration awards. He questions whether conditioning GSP benefits on compliance with arbitration awards is consistent with WTO obligations. My answer is essentially yes. Because there are so many issues at play, I thought it best to respond in a new post rather than respond in the comment section to his post.

First, there is no question that granting preferential treatment for developing countries does not violate MFN rules. That was settled with the so-called Enabling Clause. The real question is whether a particular GSP-scheme is consistent with the Enabling Clause. The Enabling Clause provides that Member States may accord differential and more favorable treatment to developing countries, provided (a) such treatment is non-discriminatory as between similarly-situated developing countries; and (b) is designed to promote the development, financial and trade needs of the developing countries.

As to the first requirement, the Enabling Clause requires GSP benefits to be conferred in a non-discriminatory manner among similarly-situated developing countries. This, according to EC-Tariff Preferences, requires that the relevant preference be made available to all beneficiaries that share that need. (EC-Tariff Preferences, para. 180). That requirement appears to be met. The U.S. obligation on compliance with arbitration awards is applied to all GSP beneficiaries alike. Argentina might have a discrimination argument if other beneficiary countries refuse to honor arbitration awards but still enjoy GSP benefits. But I am not aware of any such examples, and if anything, it appears that other developing countries like Ecuador will soon face a similar fate as Argentina.

Second, the GSP conditional benefit must be imposed to meet particular development, financial or trade needs. In other words, if you are granted benefits with strings attached, those strings must be for the benefit of the developing country. Simon Lester questions whether conditional tariff benefits can ever meet that requirement. I disagree. If you look at the various GSP schemes, the list of such needs are legion, addressing issues such as drug-trafficking, communism, terrorism, human rights, environmental protection, expropriation, contractual compliance, intellectual property protections, etc.

At one level one might view many of these concerns as primarily about protecting developed countries’ interests more than promoting the developing country needs. But, of course, these goals are mutually-beneficial. Goals such as promoting the rule of law, creating a safe and stable legal climate, encouraging foreign investment, good governance, reducing crime and corruption, guaranteeing human rights, and encouraging environmental sustainability are all legitimate objectives that developed countries legitimately can ask developing countries to pursue.

(More….)

Russian Roulette: Firing Blanks in the Sanctions Against Russia?

by Kristen Boon

As widely reported in the press last week, President Obama announced sanctions against Russian and Ukrainian officials.   On Thursday, March 20, the “blacklist” was expanded to 2 banks and 20 officials, as detailed in this press release from the US Treasury.     Separately, the EU imposed sanctions on 21 individuals, including Russian military commanders.

The U.S. goals, President Obama said, are “to isolate Russia for its actions, and to reassure our allies and partners” of American support.    Under the U.S. Treasury’s ruling, assets belonging to designated individuals within U.S. jurisdiction will be frozen, and business between U.S. entities and the Russian parties in question will be halted.     In retaliation, Russia imposed sanctions against nine officials, including Republican Senator John McCain and Speaker of the House John Boehner.

According to President Obama, the goal of US sanctions is:  “[To] send a strong message to the Russian government that there are consequences for their actions that violate the sovereignty and territorial integrity of Ukraine, including their actions supporting the illegal referendum for Crimean separation .”

I have been studying multilateral sanctions for much of the past year, and the theory behind targeted sanctions in that context is that in order to change behavior, there must be an incentive to comply.  As the sanctions expert Mikael Eriksson writes, “The typical goal of such measures is to influence decision-makers by engaging or isolating them through targeted financial restrictions, and travel bans and other measures . . . targeting involves different tactics, but in principal, pressure is exercised by a combination of punitive measures, incentives and conditionality to entice or coerce designated targets to change their behavior.”

Moreover, a 2007 report of the Security Council’s Working Group on Sanctions states: “Experience has shown that sanctions work best as a means of persuasion, not punishment: sanctions should include carrots along with sticks—not only threats, but inducements to elicit compliance. The target must understand what actions it is expected to take. And partial or full compliance should be met by reciprocal steps from the Council, such as easing or lifting sanctions as appropriate.”  (UN Security Council, Letter Dated 12 December 2007 from the Permanent Representative of Greece to the United Nations Addressed to the President of the Security Council (December 13, 2007) UN Doc. S/2007/734, p. 3)

The only available sanctions against Russia are so called “unilateral” sanctions, by states like the US and organizations like the EU.  Although the United Nations has a well-developed practice of targeting, and in fact has exclusively applied targeted sanctions since 1994, Russia’s unsurprising veto of a draft resolution on the Ukraine on Saturday March 15 foreclosed the opportunity to apply multilateral sanctions against the Ukraine or Russia.   There is consequently no way to apply global sanctions against Russia.  Nonetheless, there may be some useful lessons.

So far, the US sanctions are clearly designed to act as a “stick:” to indicate further consequences will follow any new incursions into the Ukraine, and to signal displeasure with supporting the referendum for Crimean separation.  But do the US or the EU believe at this point that Russia will pull out of Crimea? It seems unlikely and if that is true, these are punitive measures to the extent they are focussed on the referendum and attempted annexation.

The US has an even bigger stick in the wings:  more sanctions against sectors of the Russian economy.    President Obama signed an executive order described here that would allow the administration to apply future sanctions against industries including financial services, metals and mining, energy, defense and related material, and engineering.    These could have a huge impact on the Russian economy, as the New York Times explains, and would likely affect the economy of other countries in Europe as well.

I have seen nothing so far to indicate whether an incentives based strategy is at play here.  I suspect this is partly a question of timing -  it is too soon to entice compliance.  After all, their effects are only starting to be felt.  But for unilateral sanctions by the US and EU sanctions to be effective, it may be necessary to consider carrots.   One of the most tried and tested incentives is to offer the lifting of sanctions.  When a domestic polity backs a particular approach, this is easiest.  Sometimes other techniques are employed as well, whether to include people at the bargaining table who would otherwise be barred, or to offer economic incentives.  Neither of these techniques seems likely in the present situation because the individuals targeted are not outsiders, but part of Putin’s cohort.

As a result, these sanctions may be around for some time.  Presently, it seems unlikely that the Russian ‘targets’ will comply of their own accord.  Moreover, the surge in Putin’s popularity after the attempt to annex Crimea, suggests that there is little domestic opposition to recent developments.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Weekly News Wrap: Monday, March 24, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Americas

Middle East

Europe

UN

Events and Announcements: March 23, 2014

by An Hertogen

Call for Papers

  • The ASIL International Economic Law Interest Group is calling for paper and panel proposals for its 2014 Biennial Research Conference, to be held at the University of Denver’s Sturm School of Law, on November 13-15, 2014. The theme of the conference is “Reassessing International Economic Law & Development: New Challenges for Law & Policy”. They strongly encourage scholars, practitioners, and advanced graduate students to submit proposals to present original research on the theme topic, or on other areas of international economic law. You do not have to be an ASIL or Interest Group member to participate. The full call for papers can be downloaded here. Please contact IEcLIG Co-Chairs Jason Yackee & Elizabeth Trujillo with any questions.
  • The European Society of International Law (ESIL) Interest Group on Business and Human Rights is calling for papers in view of its 3rd Research Workshop at the 10th ESIL Anniversary Conference, to be held in Vienna, Austria, on September 3, 2014. Following the overarching theme of the Research Forum, “International Law and …: Boundaries of International Law and Bridges to Other Fields and Disciplines”, they invite papers addressing the interplay between international law and other fields of law or other disciplines from the perspective of business and human rights. Please submit a 500 words abstract proposal via email to Damiano de Felice by May 31, 2014. Successful applicants will be informed by June 15, 2014, and will need to submit final papers by August 15, 2014. In addition to the abstract, the following information must be provided on the submission: The author’s name and affiliation; The author’s CV, including a list of relevant publications; The author’s contact details; Whether the author is an ESIL member. For the sake of blind peer-reviewing, candidates are requested to include their name and affiliation in the email, but NOT in the abstract itself. Selection criteria are: originality of the work, links to the panel theme, and geographical representation of the speakers. Only one abstract per author will be considered. At the moment of presentation, papers should be unpublished and in an advanced stage of completion. Publication in a book or a special issue of a journal will be considered. In order to participate in the Interest Group panel, speakers must be members of ESIL. The membership can be formalised once abstracts have been accepted.

Events

  • The Geneva Academy of International Humanitarian Law and Human Rights invites you to a discussion, on March 28, of how human rights law regulates use, procurement, and transfer of weapons. A new book Weapons Under International Human Rights Law, a new publication by Cambridge University Press will be launched during the event. More information is here.

Summer Schools

  • From 29-30 April 2014, the British Institute of International and Comparative Law (BIICL) will be running a two-day programme called ‘Public International Law in Practice’. Click on the links for more information and for registration.
  • The Academy of European Law at the European University Institute (EUI) in Florence, Italy, holds two summer courses each year, on Human Rights Law and the Law of the European Union. The 2014 Human Rights Law course (June 16-27) comprises a General Course on ‘21st Century Human Rights’ by Harold Hongju Koh (Sterling Professor of International Law, Yale Law School) and a series of specialized courses on the topic of ‘Freedom of Religion, Secularism and Human Rights’. There will also be two distinguished lectures, by Bruno Simma (Judge at the Iran-United States Claims Tribunal; former Judge at the International Court of Justice) and Joseph H.H. Weiler (President of the European University Institute). The 2014 Law of the European Union course  (June 30-July 11)  comprises a General Course on ‘The Internal Market as a Legal Concept’ by Stephen Weatherill (Jacques Delors Professor of European Law, Oxford University) and a series of specialized courses on the topic of ‘EU Legal Acts: Challenges and Transformations’. The Summer School will also include a distinguished lecture by Marta Cartabia, an EUI alumna now Judge at the Italian Constitutional Court and Professor of Constitutional Law, Bicocca University in Milan. The deadline for applications is Thursday April 10, 2014. For further information, visit the Academy’s website.
  • The ICC Summer School at the Irish Centre for Human Rights, NUI Galway will take place from June 16-20. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Weekend Roundup: March 15-21, 2014

by An Hertogen

This week on Opinio Juris, we continued last week‘s YLS Sale Symposium with a post by Thomas Gammeltoft-Hansen describing Sale’s legacy as a game of cat and mouse between law and politics, a post by David Martin on the realms of policy and law in refugee protection. In a two part post (1, 2), Guy Goodwin-Gill looked at state practice preceding Sale and argued that the case was not the watershed moment it is seen to be. T. Alexander Aleinikoff discussed a way forward to ensure that the rights of refugees are adequately protected. Harold Koh closed off the symposium with his reflections on Sale’s legacy.

Also continuing from last week was our Ukraine Insta-Symposium. Boris Mamlyuk argued for a better empirical understanding of the facts on the ground to assess the legality of intervention in Ukraine. As the events in Crimea unfolded, questions of recognition and annexation came into the spotlight with a post by Anna Dolidze on the non-recognition of Crimea, one by Chris analyzing the legality of recognition of a secessionist entity, and one by Greg Fox on the Russian-Crimea treaty.

In other posts, Duncan tried to read the tea leaves in the US Senate confirmation hearings for the new head of US Cyber Command. Julian reported from a hearing of the Privacy and Civil Liberties Oversight Board on the legality of overseas electronic surveillance and predicted that international law will receive short shrift in the Board’s final report. Andrés Guzmán Escobari rebutted an earlier post by Julian and argued that Bolivia’s ICJ case against Chile to obtain access to the Pacific Ocean is reasonably strong. Roger closed off the week with a post on the use of trade remedies to enforce arbitration awards.

Finally, Jessica wrapped up the news and listed events and announcements.

Many thanks to our guest contributors and have a great weekend!

Using Trade Remedies to Enforce Arbitration Awards

by Roger Alford

As I discuss in a recent article published in the Santa Clara Journal of International Law, one of the most significant developments signaling the convergence of trade and arbitration is the use of trade remedies to enforce arbitration awards. This is done primarily when a developed country threatens to remove preferential trade benefits to a developing country if that country does not honor its international arbitration commitments.

The WTO allows (but does not require) developed countries to grant preferential trade benefits to “promote the development, financial and trade needs of developing countries.” Many developed countries—including Australia, Canada, the European Union, and the United States—have established such “Generalized System of Preferences” or GSPs to promote trade with developing countries. The major benefit of GSP schemes is the unilaterally lowering of tariff bowers for products from beneficiary countries without a corresponding reduction in tariffs for the developed country’s products.

The discretionary nature of these schemes means that the trade benefits come with strings attached. In the United States and the European Union, for example, developing countries are subject to performance obligations with respect to matters such as drug trafficking, international terrorism, democracy, human rights, environmental protection, government corruption, unlawful expropriation, the rule of law, and good governance.

The United States imposes a number of conditions on beneficiary countries, including that they recognize and enforce arbitral awards in favor of United States nationals. Any country that wishes to secure beneficiary status under the GSP scheme must satisfy this criterion, and any country that fails to maintain this commitment jeopardizes their beneficiary status. The provision was added to the Trade Act of 1974 because of concerns that it was “contrary to sound U.S. policy to give…any… developing nation the favored treatment contemplated by the present legislation in the face of unwillingness to abide by solemn agreements to recognize as final and binding arbitration awards rendered in disputes between it and American parties.” (120 Cong. Rec. 39831).

The use of trade remedies to enforce arbitration awards is best illustrated by the ongoing dispute over Argentina’s refusal to honor adverse investment awards. On March 26, 2012, the Obama Administration announced that Argentina’s GSP beneficiary designation would be suspended “because it has not acted in good faith in enforcing arbitral awards in favor of United States citizens.” It was the first time in American history the United States denied GSP trade benefits to a developing country for its failure to honor arbitration commitments.

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Bolivia´s Reasonably Strong ICJ Case against Chile

by Andrés Guzmán Escobari

[Andrés Guzmán Escobari is a former Bolivian diplomat, a Professor at Universidad del Valle and Universidad de los Andes and an associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

A few days after Bolivia instituted proceedings against Chile before the International Court of Justice, Julian Ku wrote a post here on Opinio Juris entitled “Bolivia´s Ridiculously Weak ICJ Case against Chile”.  His main claim?  “This case looks like a sure loser on admissibility; it looks like it is going to be a major waste of time for the ICJ”.

In this post, I would like to offer a rebuttal to Mr Ku’s comments and to explain why Bolivia’s case is not only not a ‘sure loser’ but is reasonably strong.  The case concerns Bolivia’s request that the Court declare and adjudge that “Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean” because “Chile has breached the said obligation”. Specifically, for that reason, “Chile must perform the said obligation with good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean”.

Mr Ku develops two mains arguments to support his opinion: (1) that there is no compulsory ICJ jurisdiction under the Bogota Treaty; and (2) that there is no specific obligation on Chile to negotiate an agreement granting Bolivia an access to the Pacific Ocean because the language of the declarations made by Chilean authorities with the purpose of giving Bolivia back sovereign access to the sea were “non-obligatory”.

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