Abstract
This article complements the doctrine of termination of membership by arguing that at times international organizations ('ios') can still exert considerable normative effects on states that withdraw or express the intent to withdraw from them. We capture this continuing influence, which can collide with the exiting state's intended goal of regaining control over specific issues, with a theoretical framework based on juridification as a socio-legal concept of systems theory in the international legal context. The aim is to explain the endogenous process of legal growth within the io via bureaucratisation and expert rule, which eventually affects the norms of the wider legal regime where the io operates. With three case studies of io exits, we illustrate the continuation of normative structures promoted directly or indirectly by the io, according to two legal techniques of juridification: third-party interpretation on the one hand, and the extended reach of norms and processes through the work of non-state actors on the other. Overall, widening the theoretical perspective on state exits under systems theory can lead to more complete judgements on the tensions between domestic and supranational systems in the expansion of global normative regimes.
| Original language | English |
|---|---|
| Pages (from-to) | 265-294 |
| Number of pages | 30 |
| Journal | International organizations law review |
| Volume | 15 |
| Issue number | 2 |
| DOIs | |
| Publication status | Published - 1 Jan 2018 |
| Externally published | Yes |
Funding
With a view to complement the perspective offered by functionalism and formalistic approaches to unilateral exits from io s, this paper has focused on juridification as a phenomenon of legal growth within io s and a possible cause of state exits. We have used systems theory as a sociological tool to better understand the impact of formalisation through juridification, coupled with informal techniques of law-making. While this approach cannot say anything about the legal validity of the effects created by io acts on the wider function regimes, it offers a solid framework to understand these effects from a legal systems perspective. Accordingly, by looking at cases of highly juridified io s we found that, while exits are indeed about withdrawing from a multilateral treaty with the ensuing cessation of membership, as well as rights and obligations, states wishing to exit might only partially achieve the desired aims of full disentanglement from the io ’s internal law; instead, they will still be somehow affected under the wider regime where the io operates. Awareness of juridification via bolstered expert rule, bureaucratisation, and participation of non-state actors can lead to more complete judgements on the tensions between domestic and supranational systems. So, those advocating for centrifugal pulls from io -centred orders should further assess to what extent full detachment can be achieved and what other measures, other than formal exits, would be needed for achieving the exit goal. By the same token, a more complete framing of the legal techniques for juridification can help those contributing to it to better tame these tensions. However, the question remains as to whether this managerial approach would still result in even more bureaucratization and expert rule, confirming the view of juridification as an endless spiral, growing out of a legal mindset that all international lawyers somehow share. * We thank the participants in the 2017 workshop of the esil Interest Group on International Organizations for their comments on an early version of this paper. We are also grateful to Paolo Sandro, as well as the anonymous reviewers for their thoughtful criticisms and helpful suggestions. Of course, all errors are our own. 1 In this study, we understand io s widely by including international institutions created under multilateral treaties, even if they lack international legal personality. See Henry G Schermers and Niels M Blokker, International Institutional Law (Martinus Nijhoff, 5th Revised Ed, 2011) 45. We also attribute the same meaning to the terms ‘ io s’ and ‘international institutions’; as well as to ‘international institutional law’ and ‘law of international organizations’. 2 Jan Klabbers, ‘The Changing Image of International Organizations’ in Jean-Marc Coicaud and Heiskanen (eds), The Legitimacy of International Organizations (United Nations University Press, 2001) 221. 3 Ibid 222. See also José E Alvarez, ‘International Organizations: Then and Now’ (2006) 100(2) American Journal of International Law 324. 4 For an overview of notable cases see Schermers and Blokker, above n 1, 98. 5 Klabbers, above n 2, 222. 6 See Konstantinos D Magliveras, ‘Membership in International Organizations’ in Jan Klabbers and Åsa Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar Publishing, 2011) 84, 98–101. Another technique is the temporary suspension of participation in the io by the state: see the case of Indonesia’s suspension of activities in the un below. 7 Julia C Morse and Robert O Keohane, ‘Contested Multilateralism’ (2014) 9(4) The Review of International Organizations 385, 389–390. The concept defines current situations in world politics where states, coalitions and non-state actors engage in the creation of competitive multilateral institutions to challenge existing ones. Exits and their threat play the role of giving voice to the recalcitrant state or coalition. 8 As of April 2018, South Africa and Gambia have taken back their notification to withdraw, while Burundi’s exit has taken effect in October 2017. In March 2018, the Philippines have filed a notification to withdraw from the Rome Statute. See Rome Statute of the International Criminal Court , opened for signature 17 July 1998 2187 unts 3 (entered in force 1 July 2002), Chapter xviii : Penal Matters, 14. 9 Magliveras, above n 6, 100. 10 Ramses A Wessel, ‘You Can Check out Any Time You like, but Can You Really Leave?’ (2016) 13(2) International Organizations Law Review 197. 11 Jürgen Habermas, The Theory of Communicative Action, Volume 2: Lifeworld and System: A Critique of Functionalist Reason (Beacon Press, 1985). 12 Stephen Mathias and Stadler Trengove, ‘Membership and Representation’ in Jakob K Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook of International Organizations (Oxford University Press, 2016) 963; Nagendra Singh, Termination of Membership of International Organisations (Stevens, 1957); C F Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press, 2005) 117; Schermers and Blokker, above n 1, 98; Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (Sweet and Maxwell, 2009); Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2nd ed, 2009) 109–114; Alison Duxbury, The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge University Press, 2011); Magliveras, above n 6. 13 This is admittedly the prevalent conception of io s and membership io s. See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] icj Rep 174, 180; see also Jan Klabbers, ‘Two Concepts of International Organization’ (2005) 2(2) International Organizations Law Review 277. See also Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford University Press, 2005) 109, finding that agency cannot be presumed with regards to all powers exercised by the io . 14 See Georges Scelle’s doctrine of dédoublement fonctionnel , and the postulate of autonomous will as a condition for existence of an io : Niels Blokker, ‘International Organizations and Their Members’ (2004) 1 International Organizations Law Review 139; Nigel White, The Law of International Organisations (Manchester University Press, 3rd ed, 2016); Jean d’Aspremont, ‘The Law of International Organizations and the Art of Reconciliation’ (2014) 11(2) International Organizations Law Review 428. 15 Schermers and Blokker, above n 1. Sarooshi, above n 13. Expectedly, this attitude also emerged during the early discussions on the right to withdraw from the European Union (‘ eu ’). During the negotiations for the Treaty Establishing a Constitution for Europe, Friel has compared the issue of withdrawal from eu to constitutional experiences in federal states, criticising how a draft withdrawal clause would threaten the stability of the eu and the withdrawing state. See Raymond J Friel, ‘Providing a Constitutional Framework for Withdrawal from the eu : Article 59 of the Draft European Constitution’ (2004) 53 International and Comparative Law Quarterly 407. 16 Bardo Fassbender, ‘The United Nations Charter As Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529. See more extensively Anne Peters, ‘Membership in the Global Constitutional Community’ in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law (Oxford University Press, 2009) 153, 201–219. 17 See Schermers and Blokker, above n 1. Klabbers also mentions the suspension of membership rights in alternative to the expulsion of recalcitrant states, and the termination of membership in cases where amendments to the constitutive agreement are not accepted by a member: Klabbers, above n 12, 109–113. Similarly, see Amerasinghe, above n 12, 117. Comprehensive works on the theme are Singh, above n 12; Duxbury, above n 12; Konstantinos D Magliveras, Exclusion from Participation in International Organisations: The Theory and Practice behind Member States’ Expulsion and Suspension of Membership (Oxford University Press, 1998). 18 This difficulty in conciliating the two poles has recently re-emerged in Brexit debates concerning the possibility of unilateral withdrawal of the notification under article 50(2) of the Treaty on the European Union and its constitutive effects over the exit procedure. For arguments based on the applicability of the Vienna Convention on the Law of Treaties , see Aurel Sari, ‘Reversing a Withdrawal Notification under Article 50 teu : Can a Member State Change Its Mind?’ (2017) < https://papers.ssrn.com/abstract=2872152 >; for a eu /member state centered approach Paul Craig, ‘The Process: Brexit and the Anatomy of Article 50’ in Federico Fabbrini (ed), The Law & Politics of Brexit (Oxford University Press, 2017) 49, 65. 19 The viability of unilateral withdrawals without an exit clause in the treaty is still contested. Nigel White is of the view that it should not be allowed in any circumstance, but either induced from the intention of the parties or implied from the nature of the treaty. In the absence of any express or implied consent, states can withdraw only according to the rebus sic stantibus doctrine. See White, above n 14. 116–117. Contra see Schermers and Blokker, above n 1, 108 essentially claiming that the permissibility of unilateral withdrawals eventually depends on states practice and the arguments that the withdrawing state can take. Generally, see N Feinberg, ‘Unilateral Withdrawal from an International Organization’ (1963) 39 British Year Book of International Law 189. 20 Egon Schwelb, ‘Withdrawal from the United Nations: The Indonesian Intermezzo’ (1967) 61(3) The American Journal of International Law 661. 21 Yehuda Z Blum, ‘Indonesia’s Return to the United Nations’ (1967) 16(2) International and Comparative Law Quarterly 522. 22 See Oscar Schachter’s interpretation as reported in ibid 523. 23 Jan Klabbers, ‘The Transformation of International Organizations Law’ (2015) 26(1) European Journal of International Law 9; Lorenzo Gasbarri, ‘The Dual Legality of the Rules of International Organizations’ (2017) 14(1) International Organizations Law Review 87. 24 Magliveras, above n 6, 98–99. 25 Andrew Guzman, ‘International Organizations and the Frankenstein Problem’ (2013) 24(4) European Journal of International Law 999, 1007–1009. 26 Wessel, above n 10. 27 Gasbarri, above n 23. 28 Jan Klabbers, ‘Transforming Institutions: Autonomous International Organisations in Institutional Theory’ (2017) 6(2) Cambridge International Law Journal 105, 119. 29 Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017) 18. Others have referred to it as ‘constitutive juridification’: see Lars Christian Blichner and Anders Molander, ‘Mapping Juridification’ (2008) 14(1) European Law Journal 36, 39. 30 For instance, the doctrine of implied powers, the principle of attribution and speciality, and the doctrine of competence of organs. These have been mostly formulated through the advisory opinions of the International Court of Justice and the work of the International Law Commission. See Guy Fiti Sinclair, ‘State Formation, Liberal Reform and the Growth of International Organizations’ (2015) 26(2) European Journal of International Law 445, 449–450. 31 Sinclair, for instance, highlights the leadership role of the un Secretary General, Dag Hammarskjöld, in the creation and justification of un peacekeeping intervention during the Congo crisis. Similarly, Albert Thomas, nominated as Office Director of the International Labor Organization, was behind the development of technical assistance activities in member states. See Sinclair, above n 29. Generally, see José Enrique Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005) 328. 32 See Blichner and Molander, above n 29, who identify in these processes another form of juridification. 33 Guzman, above n 25. 34 A strand of the literature criticised for its limitedness to a liberal international relations analysis of international law. See Martha Finnemore and Stephen J Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’ (2001) 55(3) International Organization 743. 35 This is a view espousing ‘relative normativity’ in international law. In the context of positivist approaches, see Ulrich Fastenrath, ‘Relative Normativity in International Law’ (1993) 4 European Journal of International Law 305. Contra Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77(3) The American Journal of International Law 413. 36 Kenneth W Abbott et al, ‘The Concept of Legalization’ (2000) 54(3) International Organization 401. 37 Kenneth W Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54(3) International Organization 421. 38 Laurence Helfer, ‘Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes’ (2002) 102 Columbia Law Review 1832, 1854. 39 The same case is also analysed below according a revised conceptualisation of juridification. See below, section 5. 40 Helfer, above n 38. 41 Laurence Helfer, ‘Exiting Treaties’ (2005) 91 Virginia Law Review 1579, 1608. 42 For a positioning of systems theory within contemporary approaches to international law, see Ingo Venzke, ‘Contemporary Theories and International Lawmaking’ in Research Handbook on the Theory and Practice of International Lawmaking (Edward Elgar Publishing, 2016) 77. 43 Function systems deal with specific subject matters contrasted with organization systems. An io is an organization system but also participates to function systems (for example, international human rights law etc). 44 Gunther Teubner, ‘Juridification: Concepts, Aspects, Limits, Solutions’ in A Reader on Regulation (Oxford University Press, 1998). 45 Habermas, above n 11. 46 Ibid 356. 47 Ibid. 48 Teubner, ‘Juridification: Concepts, Aspects, Limits, Solutions’, above n 44, 424. 49 Gunther Teubner and Andreas Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25(4) Michigan Journal of International Law 999; Lena Hilkermeier and Mathias Albert, ‘Organizations in/and World Society A Theoretical Prolegomenon’ in Mathias Albert and Lena Hilkermeier (eds), Observing International Relations : Niklas Luhmann and World Politics (Taylor and Francis, 2003) 177; Jürgen Habermas, The Divided West (Polity, 2006). 50 Friedrich Kratochwil and John Gerard Ruggie, ‘International Organization: A State of the Art on an Art of the State’ (1986) 40(4) International Organization 753. Teubner and Fischer-Lescano, above n 49. 51 Habermas, above n 49, 115; Niklas Luhmann, Law as a Social System (Oxford University Press, 2008); Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization. (Oxford University Press, 2012) 8. 52 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, 2010). 53 Teubner and Fischer-Lescano, above n 49. 54 Blichner and Molander, above n 29, 42. 55 Teubner and Fischer-Lescano, above n 49, 1009. 56 Hilkermeier and Albert, above n 50, 186. 57 Luhmann, above n 51, 60. Tor Hernes and Tore Bakken, ‘Implications of Self-Reference: Niklas Luhmann’s Autopoiesis and Organization Theory’ (2003) 24(9) Organization Studies 1511. 58 Cited by Blichner and Molander, above n 29. 59 Teubner, ‘Juridification: Concepts, Aspects, Limits, Solutions’, above n 44, 406. 60 Tor Hernes and Tore Bakken, above n 57. 61 Luhmann, above n 51, 110–111. 62 “Coupling mechanisms are called structural couplings if a system presupposes certain features of its environment on an ongoing basis and relies on them structurally”: ibid 382. 63 Thus, we are not concerned as to whether decisions made within an organization system are potentially ultra vires under the constitutive treaty. What matters here is that the decision is made and accepted within the system itself. 64 Teubner and Fischer-Lescano, above n 49. 65 Prior to juridification, the state could use interpretative declarations as accepted in general international law. 66 Ingo Venzke, ‘International Bureaucracies from a Political Science Perspective – Agency, Authority and International Institutional Law’ in Armin Von Bogdandy, Philipp Dann and Matthias Goldmann (eds), The Exercise of Public Authority by International Institutions (Springer, 2010) 67. 67 M Weber and T Parsons, The Theory of Social and Economic Organization (Free Press, 1968) 277. 68 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70(1) The Modern Law Review 1. 69 Habermas, above n 11, 306–307. 70 Martti Koskenniemi, ‘Hegemonic Regimes’ in Margaret A Young (ed), Regime Interaction in International Law (Cambridge University Press, 2012) 305. 71 Kratochwil and Ruggie, above n 50. Teubner and Fischer-Lescano, above n 49, 1005. 72 Some of these issues have also been discussed under the term of ‘informal international law making’. See, in particular, Joost Pauwelyn, Ramses Wessel and Jan Wouters (eds), Informal International Lawmaking (Oxford University Press, 2012). 73 Hilkermeier and Albert, above n 49. 74 Ibid 183. 75 Ibid. 76 Teubner and Fischer-Lescano, above n 49. For a discussion of the possibility of these function regimes and a further analysis of the problems of coordination: see also Gunther Teubner, Global Bukowina: Legal Pluralism in the World Society in Global Law without a State (Brookfield, 1997) 13–19; Stefan Oeter, ‘International Law and General Systems Theory’ German Yearbook of International Law 72, 75–76. 77 The icj had to interpret in substance article 13 of the International Covenant on Civil and Political Rights : Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment) [2010] icj Rep 639, [66]-[68]. 78 Demir and Baykara v Turkey [ gc ] [2008] Eur Court hr 1345. 79 Christopher McCrudden, ‘Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20(4) Oxford Journal of Legal Studies 499. 80 Opened for signature 16 December 1966, 999 unts 171 (entered into force 23 March 1976). 81 Opened for signature 22 November 1969, 1144 unts 1 (entered into force 18 July 1978). 82 Natalia Schiffrin, ‘Jamaica Withdraws the Right of Individual Petition Under the International Covenant on Civil and Political Rights’ (1998) 92(3) The American Journal of International Law 563. 83 Trinidad and Tobago rejoined the op - iccpr with a death-penalty related reservation in August 1998. However as this reservation was later found to be illegal by the Human Rights Committee, it denounced the op - iccpr again. This time for good. See Yogesh Tyagi, ‘The Denunciation of Human Rights Treaties’ (2009) 79(1) British Yearbook of International Law 86, 174–175. 84 Helfer, above n 38. 85 Schiffrin, above n 82. Tyagi, above n 83. 86 For an overview of the role of the Privy Council: see Neuberger, ‘The Judicial Committee of the Privy Council in the 21st Century’ (2014) 3(1) Cambridge Journal of International and Comparative Law 30. 87 Rose-Marie B Antoine, ‘Waiting to Exhale: Commonwealth Caribbean Law and Legal Systems’ (2005) 29 Nova Law Review 141. 88 [1994] 2 ac 1. See William A Schabas, ‘Soering’s Legacy: The Human Rights Committee and the Judicial Committee of the Privy Council Take a Walk down Death Row’ (1994) 43(4) The International and Comparative Law Quarterly 913. 89 Soering v United Kingdom [1989] 11 ehrr 439. 90 Schabas, above n 88. 91 James Campbell, ‘Murder Appeals, Delayed Executions, and the Origins of Jamaican Death Penalty Jurisprudence’ (2015) 33(2) Law and History Review 435. 92 iccpr , art 6(2); achr , art 4(2). 93 Campbell, above n 91. 94 96% in Trinidad and Tobago, 87% in Jamaica. Helfer, above n 38, 1885. 95 See for instance: for Jamaica, the Report of the Special Rapporteur on torture of 2010. a/ hrc /16/52/Add.3 96 Thomas v Baptiste [2000] 2 ac 1. Appeal stemming from Trinidad and Tobago. 97 Derek O’Brien and Se-Shauna Wheatle, ‘Post-Independence Constitutional Reform in the Commonwealth Caribbean and a New Charter of Fundamental Rights and Freedoms for Jamaica’ (2012) (October) Public Law 683. 98 Salvatore Caserta, ‘The Contribution of the Caribbean Court of Justice to the Development of Human and Fundamental Rights’ (2018) 18(1) Human Rights Law Review 170. 99 O’Brien and Wheatle, above n 97, 692. 100 Helfer, above n 38, 1836. 101 Helfer, above n 38. 102 Katja S Ziegler, Elizabeth Wicks, and Loveday Hodson, ‘The uk and European Human Rights: A Strained Relationship?’ in Katja S Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The uk and European Human Rights : A Strained Relationship? (Hart Press, 2015) 3. 103 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States , opened for signature 3 March 1965, 575 unts 159 (entered into force on 14 October 1966) (‘ icsid Convention ’). 104 Mariana Durney, ‘Legal Effects and Implications of the Denunciation of the icsid Convention on Unilateral Consent Contained in Bilateral Investment Treaties: A Perspective from Latin American Cases’ (2013) 17(1) Max Planck Yearbook of United Nations Law 221, 234. 105 ‘Bolivia Denounces icsid Convention’ (2007) 46 International Law Materials 973. 106 In addition to that, the three states also terminated several (but not all) bilateral investment treaties. See unctad , Investment Policy Hub < http://investmentpolicyhub.unctad.org >. To date, Venezuela has only terminated its bilateral investment treaty with the Netherlands. 107 For a compelling analysis see M Sornarajah, Resistance and Change in the International Law on Foreign Investment (Cambridge University Press, 2015). 108 E Arismendi, ‘La Experiencia del Estado Plurinational de Bolivia en el Centro de Arreglos de Differencias Relativas a Inversiones ( ciadi )’ < http://www.ohadac.com/telechargement/bibliographie/10/0/experiencia-boliviana-en-el-ciadi-en-el-centro-de-arreglos-de-diferencias-relativas-a-inversiones.arismendi-elizabeth.pdf >. See also R Palanco Lazo, ‘Two Worlds Apart: The Changing Features of International Investment Agreements in Latin America’ in Attila Tanzi and others (eds), International Investment Law in Latin America: Problems and Prospects (Brill Nijhoff 2016) 68–97, 76. 109 Ibid. 110 Constitution of the Republic of Ecuador , arts 339, 416(12) and 422 < https://www.oas.org/juridico/pdfs/mesicic4_ecu_const.pdf >. The latter article explicitly prohibiting the adoption of international investment agreements, apart from regional ones. 111 Constitution of the Bolivarian Republic of Venezuela , art 151 < http://www.cne.gob.ve/web/normativa_electoral/constitucion/titulo4.php#cap1sec5 >. After the denunciation, Bolivia’s 2009 Constitution made expressed preference to prioritising national to foreign investment and prohibiting foreign jurisdiction. See Constitution of the Plurinational State of Bolivia , art 320(1). 112 For a more detailed analysis see Carlos Bellei Tagle, ‘Arbitraje De Inversiones En América Latina: De La Hostilidad a La Búsqueda de Nuevas Alternativas’ in Attila Tanzi et al (eds), International Investment Law in Latin America Problems and Prospects (Brill Martinus Nijhoff, 2016) 98, 115–125. 113 icsid Convention . 114 For a compelling analysis of how this substantive role was shaped through the leading work of icsid ’s Secretary Generals and World Bank’s legal counsels see Sergio Puig, ‘Emergence & Dynamism in International Organizations: icsid , Investor-State Arbitration & International Investment Law’ (2012) 44 Georgetown Journal of International Law 531. 115 But also of national laws allowing for isds mechanisms, including icsid , as well as investor-state contracts containing arbitration clauses. 116 The majority of known isds arbitrations has taken place under icsid . See unctad , Word Investment Report (2017) < http://unctad.org/en/PublicationsLibrary/wir2017_en.pdf > 115. 117 Sornarajah, above n 107, 247–250. 118 Interpretation relying on essentially one case under the us -Mexico Claims. See Técnicas Medioambientales Tecmed, S A v The United Mexican States (Award) (2003) icsid Case No arb ( af )/00/2, [154], re-interpreting L F H Neer and Pauline Neer ( usa ) v United Mexican States (1926) riaa Vol iv 60. Sornarajah, above n 107. 119 Rudolf Dolzer, ‘Fair and Equitable Treatment: Today’s Contours’ (2014) 12(1) Santa Clara Journal of International Law 7. 120 Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador (Award) (2012) icsid Case No arb /06/11. The request for arbitration was filed in May 2006, a year before the alba meeting declaring the future exits. 121 Ibid [396]-[409]. The applicability of the proportionality test was based on both an interpretation of the fair and equitable treatment standard in the international investment treaty, and on Ecuadorian constitutional law. 122 Philippe Sands, ‘Reflections on International Judicialization’ (2016) 27(4) European Journal of International Law 885, 893. The term ‘double hatting’ refers to the situation where arbitrators can work as party counsels, expert witnesses and tribunal secretaries in other disputes: see Malcolm Langford, Daniel Behn and Runar Hilleren Lie, ‘The Revolving Door in International Investment Arbitration’ (2017) 20(2) Journal of International Economic Law 301. 123 A legal consequence connected to withdrawals from icsid is the continued jurisdiction of arbitral tribunals due to the ‘sunset clauses’ of the icsid Convention (arts 71–72). See Durney, above n 104; Antonio R Parra, ‘Participation in the icsid Convention’ (2013) 28(1) icsid Review - Foreign Investment Law Journal 169. 124 Bellei Tagle, above n 112, 125. 125 unasur , ‘ xiii Reunión Presencial del Grupo de Trabajo de Expertos de Alto Nivel sobre Solución de Controversias en Materia de Inversiones De unasur ’ (2016) < http://docs.unasursg.org/ >. 126 Javier Echaide, ‘Inversiones y Solución de Controversias: El Proyecto Dentro de La Unasur y Propuestas Alternativas’ (2017) 17 Anuario Mexicano de Derecho Internacional 369. 127 A similar approach to the icsid Additional Facility Rules. See Fach Gómez, Katia and Catharine Titi, ‘El Centro De Solución De Controversias En Materia De Inversiones De Unasur: Comentarios Sobre El Borrador De Acuerdo Constitutivo’ (2016) 7(3) Investment Treaty News Quarterly < https://www.iisd.org/sites/default/files/publications/iisd-itn-august-2016-english.pdf >. 128 The term regime here defines the lex specialis of the three multilateral climate change treaties and the numerous decisions and institutional processes under their respective treaty bodies, generally named Conferences of the Parties (‘ cop s’). The treaties are the United Nations Framework Convention on Climate Change , opened for signature 9 May 1992, 1771 unts 107 (entered into force 21 March 1994) (‘ unfccc ’); Kyoto Protocol to the United Nations Framework Convention on Climate Change , opened for signature 11 December 1997, 2303 unts 162 (entered into force 16 February 2005); and Paris Agreement , opened for signature 12 December 2015, un Doc fccc / cp /2015/l.9/Rev.1 (12 December 2015) 21 (entered into force 4 November 2016). See the approach of Cinnamon P Carlarne, Kevin R Gray and Richard Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press, 2016). As to the ‘soft’ institutional nature of cop s, which are not generally regarded io s, see Robin R Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94(4) The American Journal of International Law 623. 129 Kenneth W Abbott, ‘The Transnational Regime Complex for Climate Change’ (2012) 30(4) Environment and Planning C: Government and Policy 571. 130 The White House, Statement by President Trump on the Paris Climate Accord (1 June 2017) < https://www.whitehouse.gov/briefings-statements/statement-president-trump-paris-climate-accord >. 131 Art 28(1)-(2) stipulates that withdrawal can take effect only after three years since the entry into force of the Agreement, and that the notification of withdrawal will take effect after one year from its date of receipt. 132 Statement by President Trump on the Paris Climate Accord , above n 121. 133 Cass R Sunstein, ‘Of Montreal and Kyoto: A Tale of Two Protocols’ (2007) 31 Harvard Environmental Law Review 1. 134 Ibid. 135 Communication Regarding Intent To Withdraw From Paris Agreement (4 August 2017) us Department of State < http://www.state.gov/r/pa/prs/ps/2017/08/273050.htm >. 136 In concurrence to these declarations, the Federal Government has also started a reform process of its climate change policies. See Michael Mehling, ‘A New Direction for us Climate Policy: Assessing the First 100 Days of Donald Trump’s Presidency’ (2017) 11(1) Carbon & Climate Law Review 3. 137 This strategic use of the ‘exit threat’ is well acknowledged in the literature and in the previous practice of the us . See, for instance, Magliveras, above n 6, 100–101. 138 Bali Action Plan, Decision 1/ cp .13, un Doc fccc / cp /2007/6/Add.1. 139 Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (Oxford University Press, 2017) 97–117. 140 To give but two examples, the 2011 Durban Platform for Enhanced Action clarified that the outcome of negotiations should have taken the form of a “legal instrument or agreed legal outcome with legal force”; and the 2013 cop in Warsaw set up via a decision the process of “intended nationally determined contributions” in reducing emissions, which the Paris Agreement makes obligatory through the submission of Nationally Determined Contributions. See, respectively, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, Decision 1/ cp .17, un Doc fccc / cp /2011/9/Add.1, [2]; and Further advancing the Durban Platform, Decision 1/ cp .19, un Doc fccc / cp /2013/10/Add.1, [1(b)]. 141 United States Climate Alliance < https://www.usclimatealliance.org/alliance-principles > [emphasis added]. 142 This target corresponds to the one submitted by the previous us Administration under the Paris Agreement. See < http://www4.unfccc.int/ndcregistry/PublishedDocuments/United%20States%20of%20America%20First/U.S.A.%20First%20 NDC %20Submission.pdf > 143 See Climate Mayors, 406 us Climate Mayors commit to adopt, honor and uphold Paris Climate Agreement goals < http://climatemayors.org/actions/paris-climate-agreement >. 144 See unfccc , nazca Tracking Climate Action < http://climateaction.unfccc.int/ >. Harro van Asselt, ‘The Role of Non-State Actors in Reviewing Ambition, Implementation, and Compliance under the Paris Agreement’ (2016) 6(1–2) Climate Law 91. 145 It is formally named ‘The Conference of the Parties serving as the meeting of the Parties to the Paris Agreement’: see Paris Agreement , art 16. 146 Certainly, there will always be important consequences from an exit. For instance, in the case of us withdrawal from the Paris Agreement, the compliance and transparency processes of the latter will not apply to sub-national entities and these will not be subject to international monitoring and accountability for not complying with standards and processes under the Agreement. 147 For human rights see George Letsas, ‘The echr as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press, 2013) 106. For international investment law see Sornarajah, above n 107, 246–299. 148 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2006) 333. 149 Helfer, above n 38, 1874. 150 Pratt v Jamaica , Communication Nos 210/1986 & 225/1987, un gaor , Hum Rts Comm, 44th Sess, Supp No 40, at 222, un Doc a/44/40 (1989). 151 Jonathan Bonnitcha, Lauge N Skovgaard Poulsen and Michael Waibel, The Political Economy of the Investment Treaty Regime (Oxford University Press, 2017) 93–125. 152 Schabas, above n 88. 153 Pratt v Attorney-General for Jamaica [1994] 2 ac 1. 154 This was for instance the approach taken by the British Supreme Court in R v Horncastle (Michael Christopher) [2009] uksc 14. In that case, the Court refused to follow the established case-law of the European Court of Human Rights to choose an interpretation more in line with the common law understanding of the issue. Interestingly, this led to a change of approach of the Strasbourg Court. See Nicolas Bratza, ‘The Relationship between the uk Courts and Strasbourg’ (2011) 5 European Human Rights Law Review 505.
Keywords
- climate change
- human rights
- international investment law
- juridification
- membership of international organizations
- systems theory
- termination of membership
- unilateral withdrawal
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European Society of International Law 2017 Annual Conference, IG International Organizations
Rossati, D. (Participant)
8 Sept 2017Activity: Participating in or organising an event › Seminar › Academic
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