WP Cumulus Flash tag cloud by Roy Tanck and Luke Morton requires Flash Player 9 or better.
Currently browsing posts by Lee
Reading Public Interest into BITs: Continuing Avidan Kent’s Discussion
I read Avidan Kent’s post, and the commentary that followed, on this blog describing his view of the true nature of BITs with great interest. I wanted to continue the discussion of the place of public interest in BITs and to the extent that they are considered. I am in agreement with Kent’s assessment. I offer here at least a narrow area in international investment law where arbitral tribunals have managed to read in public interest into BITs. In considering whether an investor’s legitimate expectation should be protected under the commonplace fair and equitable treatment clauses, there is some room for maneuverability and consideration of “public interests” in determining when the investor’s expectations are in fact “legitimate”.
I draw the readers’ attention to the 2007 ICSID award in Parkerings v. Lithuainia. Had the BIT contained a stabilization clause to the effect that the host State had assured and represented that the legal and regulatory conditions under which the agreement was entered into was to remain the same, then the outcome of the tribunal’s analysis would have been different. In the absence of such assurances, the tribunal extended its analysis beyond the mere wording of the BIT to the social and political framework of Lithuania at the time that it was entered into. The arbitrators found that 1998 Lithuania was in a transition from being a part of the Soviet Union to being…
SCC Unconvincing in Khadr Decision
The much anticipated arrival of the Supreme Court of Canada’s (“SCC”) decision on the repatriation of Toronto-born Omar Khadr came on Friday. Familiar to most Canadians by now, Khadr was arrested when he was 15 years old and was charged with murder, conspiracy and support of terrorism. Now 23 years old, he has been imprisoned at Gunatanamo Bay, Cuba ever since. He applied to the Federal Court for an order that he must be repatriated which was successful and subsequently upheld on appeal.
Overturning the Federal Court of Appeal’s decision, the SCC refused to order the Canadian government to bring Khadr back, submitting that it was not the correct remedy under s. 24(1) of the Canadian Charter as it would infringe on the government’s common law Royal Prerogative over foreign relations. This decision came despite the SCC recognizing that the Canadian officials who interrogated Mr. Khadr in 2003-2004:
participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice[i]
The remedy granted was that of “declaratory relief” – declaring that Khadr had had his rights violated and leaving it to the government to decide what to do with this “new” information. Wow! Thanks Supreme Court of Canada! Some remedy! I…
International Consequence to Prorogation
In discussing the principle of democracy in international law in my previous blog entry, I used the 20th anniversary of the fall of the Berlin wall as a starting point. I wondered whether the blueprint for German reunification at the turn of the decade of the 80s could be used eventually for Korean reunification. As the 00s give way to the 10s, I find myself more compelled now than before to write about another “threat to democracy.” While such a phrase may conjure up a slew of George W. Bush speeches discussing his “crusades” to the Middle East, the threat of which I speak is not overseas, not even in a different continent, but here in North America. It is in Canada. While saying that Prime Minister Harper’s move to prorogue parliament on December 30th, 2009 is a threat to democracy and an affront to international law may seem like a slight exaggeration, the background of the prorogation makes it internationally relevant.
Authoritarian Leadership
This blog is certainly not the forum to engage in an ideological debate. Moreover, prorogation of Parliament is not unusual. Since Canadian Confederation, the Parliament has been put on hold 105 times. However, it is the timing and circumstances of this prorogation which has drawn nationwide criticism. While this is not a problem under Canadian domestic law, it is arguably contrary to “soft” international law. In my previous entry I…
The Fall of the Wall and the Principle of Democracy
Freedom lovers celebrating the 20 year anniversary of the fall of the Berlin Wall were shocked when faced with a New Berlin Wall a few days ago. U2’s concert in Berlin on November 5th came with massive barriers to block the view of those without one of the free tickets. Restricting mobility, excluding certain people from a free concert and building a wall in Berlin challenges the very democratic principles which prevailed in this city some time ago. The New Berlin Wall and the always present question of the division along the 38th parallel of the Korean peninsula brings up the issue of how international law has changed since November 9th, 1989 – in particular, whether there is a right of democratic governance.
The fall of the Berlin Wall stands as a symbol of democratization, a culmination of a sweeping force that brought many European communist governments to an end. As the boundary between communism and democracy, restriction and supposed freedom came down, the question of the right to democratic governance in international law arose.
As a starting off point, the ICJ in its 1986 Nicaragua decision held that international law did not have any customary norms regarding internal forms of government. Such a view is consistent with the fundamental (read: out-dated) principle of sovereignty – the one which finds its roots in the Peace of Westphalia. However, sovereignty, like many other principles, is subject to change.…
KARADZIC A NO-SHOW: HOW SHOULD THE ICTY PROCEED?
Radovan Karadzic’s ICTY trial in The Hague has begun with the accused missing in action. Presiding Judge O-Gon Kwon allowed the prosecution to make their opening statement and said that the trial would continue regardless of Karadzic’s presence. The revised indictment contains charges for nine separate criminal acts for which he faces a maximum sentence of life imprisonment. In support of these accusations, the prosecution may present hundreds of witnesses and up to 1.2 million pages of evidence. Karadzic has asked for 9 more months in order to properly prepare and defend himself, a request that has been denied by both the Trial and Appeal Chambers.
The Right to be Present: Fundamental but not Absolute
Those standing trial in front of the ICTY have the statutory right to be present at their own trials (art. 21(4)(d) ICTY Statute). Moreover, the accused is entitled to adequate time to prepare for his trial (art. 21(4)(b)). While the right to be present at one’s own trial is a fundamental one, Judge Kwon remarked on Tuesday, it is not absolute. Indeed the Human Rights Committee (see Monguya Mbenge v. Democratic Republic of the Congo, Communication No. 16/1977) confirms that one may, when voluntary and unequivocal, waive the right to be present. Karadzic had notice of the beginning of the trial and decided not to show up.
One can, however, infer his seriousness to defend himself in front…
