Regional human rights bodies, such as the European Court of Human Rights and the Inter-American Court of Human Rights, have constituent instruments which contain clauses allowing states to leave the institution. Given that regional human rights tribunals have the power to issue rulings against states, these clauses have been relatively underused. This paper argues that this is due to the socialisation of states within regional human rights regimes. Exit clauses are a reflection of underlying political forces behind a regional human rights bodies’ formation. They also play an important and under-examined role in state socialisation once a state is a member of a regional human rights body.
The question of how disputes arising from Brexit are to be resolved, and by which body, is one of the most sensitive issues in the negotiations on the uk’s withdrawal from the European Union and the envisaged future relationship between the uk and the eu. The legal issues related to withdrawal are further magnified in complexity due to the nature of the eu itself, which does not neatly fit into the category of a traditional international organization. The uk has repeatedly stated that it will not accept the continued role of the eu Court of Justice in the uk legal system after withdrawal. Any dispute settlement system must also respect the constitutional requirements of the eu legal order, most notably, by not infringing on the autonomy of eu law. This article discusses some of the various models from international dispute settlement that could be used to inspire a dispute settlement system in the Brexit context. It discusses dispute settlement in the withdrawal agreement and the role of the Court of Justice during and after a transition period. It then discusses the challenges of designing a dispute settlement system for the future relationship agreement. While aspects of these various models could be replicated, there is no dispute settlement system that is fully appropriate to deal with the various complexities and challenges of Brexit. The paper proposes the establishment of a standing international tribunal to resolve disputes arising from Brexit.
Among international criminal tribunals (‘icts’), the International Criminal Court (‘icc’) for the first time introduced victim participation and reparations for victims. Against potential African withdrawals from the icc Statute, this article seeks to demonstrate the need to retain membership of the icc under victim-oriented considerations. Despite its deficits and limitations, the icc is arguably an important judicial forum for victims of mass atrocities committed in Africa for three arguments. First, human rights are invoked as a standard to examine the legitimacy of the decisions of the icc, African Union (‘au’), and African states. Second, international and African regional human rights law on victim rights binds African states. Third, since au regional criminal justice initiatives present important deficits and limitations in terms of victim rights, they are unfit to replace the icc.
Ambiguity still remains around the legal effects of a Member State’s withdrawal from the eu in relation to the new generation of Free Trade Agreements (‘ftas’), which are concluded as bilateral mixed agreements. Such withdrawal may have secondary implications in relation to the international obligations towards the other party of the ratified agreement. According to article 70(1)(a) of the Vienna Convention on the Law of Treaties (‘vclt’), the termination of a treaty under its provision releases the parties from the obligation further to perform the treaty. However, mixed agreements that are signed by both the Member State and the eu may cause complications. The obligation of sincere cooperation could play a large role in respect of the Member State’s compliance with its commitments under the agreement. Indeed, there are many concerns regarding the effect of the withdrawal on the eu and the withdrawing Member State in respect to mixed ftas. Could a withdrawal lead to an automatic termination or renegotiation of a trade agreement? Would it be possible to argue for fundamentally changed circumstances? Or could the principle of continuity in the vclt in the context of succession of states affect the outcome?
This contribution aims to clarify the legal situation in regard to bilateral mixed ftas that are ratified or provisionally applied—such as the eu-Canada Comprehensive Economic and Trade Agreement (‘ceta’)—in the event of a Member State’s withdrawal from the eu. It considers the Member State’s responsibilities and obligations when the withdrawal has been effectuated. Additionally, it explores the rights of the non-eu party to the agreements, as well as the consequences that the eu might face as a remaining party to the agreement.
In international arbitration, treaty standards, such as fair and equitable treatment (FET), general procedural norms, such as due process, and excuses for suspension of performance, such as the exceptio defense, draw on general principles of international law to clarify their interpretation and application. This article will (1) show what general principles of international law are, how they form and how they are distinct from general principles in domestic, public and private law systems; (2) illustrate their role with specific attention to their unique application in different international law contexts; (3) use the examples of FET, procedural norms and suspension of performance to show how general principles of international law are used in international arbitration; (4) warn against their inattentive, sloppy or haphazard use and application; and (5) ultimately highlight the benefits of incorporating general principles in international arbitration while proposing a precise methodology for their use.
This article examines the peculiarities and points of criticism of the execution of investment arbitral awards. It specifically addresses the potential obstacles to the execution of investment arbitral awards based on recent case law. First, the article focuses on the differences existing between the phases of enforcement and execution of investment arbitral awards, with special regard to the procedural frameworks of investment arbitration that are most commonly utilized. Secondly, the issue of the interrelation between these two phases is addressed in the light of national case law, given that enforcement of an arbitral award has a preliminary function for the purpose of its actual execution, in addition to representing an obstacle to the latter. Before focusing on the legal defenses to forcible execution that can undermine the entire efficacy of an arbitral award, the article explores those defenses raised to avoid an award’s enforcement.
The current column covers selected procedural developments at the International Criminal Court (“ICC”) in 2017. During the reporting period, the Court encountered a certain amount of turmoil. Notably, it was highly criticized by certain States. Nevertheless, this has not prevented the ICC from further developing its jurisprudence, and, indeed, as in recent years, the Court delivered numerous decisions. Concerning the proceedings before the Court, some of them confirmed a long-standing body of case law, whilst others provided useful clarifications on specific topics.
The concept of obligations erga omnes partes can be regarded as one of the key elements in the protection of common interests in international law. A particular issue that arises in this context is whether not directly injured States are entitled to institute proceedings against a State responsible for the breach of obligations erga omnes partes enshrined in a multilateral treaty. Two recent cases, i.e. the Whaling in the Antarctic and South China Sea cases, provide an interesting insight into this issue. Thus, this article seeks to examine issues of the locus standi of not directly injured States in response to a breach of obligations erga omnes partes by analysing the Whaling in the Antarctic and South China Sea cases. In so doing, this article considers the role of an international court or tribunal in effectuating obligations erga omnes partes and its limitations.