Groningen Journal of International Law

International Law Under Construction


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The Conflicting Relationship between Bilateral Investment Treaties and Environmental Law in Ghana

Dr Dominic Dagbanjadominic.dagbanja@uwa.edu.au

Introduction

The duty of states to protect the environment is not just a matter of municipal law, it is also reflected in international treaties like the International Covenant on Economic, Social and Cultural Rights and the African Convention on Conservation of Nature and Natural Resources and in international declarations.

The duty to protect the environment is fulfilled through the implementation and enforcement of environmental laws and regulations. As Philippe Sands and other scholars pointed out, one of the challenges facing environmental law is the difficulty of enforcement, particularly where environmental protection objectives come into conflict with economic interests. The Commission for Environmental Cooperation of North America (CECNA), for instance, argued that environmental regulations may run afoul of bilateral investment treaties (BITs). The CECNA also pointed out that conflict with BITs is one of the reasons both national environmental law and international environmental law rules suffer from inadequate domestic implementation. The United States Trade Representative similarly noted that while “securing a stable investment climate and a level playing field for […] investment abroad is an important objective […], arbitral claims brought by investors against governments (through “investor-State” arbitration) could be used inappropriately to challenge […] domestic laws and regulations, including those concerning the environment.” Continue reading


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Cambodia’s Genocide Conviction: A Sense of Justice?

Sara L. Ochs | sochs@elon.edu

On 16 November 2018, the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) Trial Chamber announced its judgment convicting former Khmer Rouge senior leaders Nuon Chea and Khieu Samphan of genocide, crimes against humanity, and grave breaches of the Geneva Convention. While this is the first genocide conviction handed down by any hybrid criminal tribunal, the judgment convicts two defendants whom the ECCC has previously convicted and sentenced to life imprisonment. The issuance of this judgment is also underscored by widespread speculation of the ECCC’s forthcoming closure, creating concern that this could be one of the last judgments issued by the Tribunal. Continue reading


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The Dichotomy Between European Union Law and International Law: Responses to the Achmea Judgment of the European Court of Justice

Cees Verburg | c.g.verburg@rug.nl

In March 2018 the Court of Justice of the European Union (CJEU) ruled in a preliminary procedure that the investor-State arbitration clause contained in the Netherlands-Slovakia Bilateral Investment Treaty (BIT) was incompatible with primary European Union (EU) law. Due to the language employed by the CJEU, this ruling casts doubt over investor-State arbitration clauses in nearly 200 existing BITs concluded between EU Member States as well as the intra-EU applicability of the arbitration clause of the multilateral Energy Charter Treaty (ECT) to which the EU itself is a Contracting Party.

In a blog post written a week after the judgment I argued that one should not expect that international arbitration tribunals constituted under the existing intra-EU investment treaties will suddenly decline jurisdiction because of the CJEU judgment. This blogpost aims at providing an overview of the subsequent developments in relation to the above–mentioned Achmea judgment and the consequences that this judgment entails for intra-EU investor-State arbitration on the basis of investment treaties.

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International Arbitration & the Remedy Gap for Victims of Business-Related Human Rights Abuses

 Prof. Katerina Yiannibas | katerina.yiannibas@deusto.es

In a legal utopia, every jurisdiction in the world could boast of efficient and affordable access to justice that would provide appropriate remedy to victims of human rights abuses. There would be equal protection and enforcement of international human rights, responsible cross-border business conduct, fair and unbiased adjudicative processes with effective assistance of counsel, and never any reprisals against victims or their defenders. Regrettably, this is not the world we live in. The contemporary legal reality instead evidences widespread legal and practical barriers to access remedy for victims of business-related human rights abuses.

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Technologies for International Law & International Law for Technologies

Dr Berenice Boutin | b.boutin@asser.nl

Advanced technologies such as artificial intelligence (AI), and their societal and policy implications, are at the forefront of current public debates (see, e.g., here, here, and here). The topic is also on the agenda of international organisations, and, in September 2018, the United Nations Secretary-General launched a ‘Strategy on New Technologies’ outlining ‘how the United Nations system will support the use of these technologies to accelerate the achievement of the 2030 Sustainable Development Agenda and to facilitate their alignment with the values enshrined in the UN Charter, the Universal Declaration of Human Rights, and the norms and standards of international law.’

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My office – my rules?

By Tina Korošec | korosec.tina1@gmail.com

Spending on average more than 40 hours a week at work means that my office colleague is by default the person I see most. I keep my sports gear and medical prescriptions in the office drawer and my planner and pictures of people I care about on the desk. I have a YouTube playlist I listen to at work. In short, my workplace is very home-like and my home is often the office for the weekend.

I am not here to judge whether this lifestyle evolution should be welcomed or rejected but I believe the blurring of divisions between the professional and personal should be observed with due caution. The European Court of Human Rights (ECtHR) recognised the difficulties in distinguishing the two and the problems with drawing the lines of human rights protection artificially in the Niemietz v. Germany case, holding that the protection of ‘private life’ under the Convention extends to the workplace. In recent years, the Court has developed considerable case-law on a broad range of workplace-related issues relevant to employees in Europe, who are often unfamiliar with the protection of their rights offered by the Convention. This blog post discusses two aspects of employers’ restrictions on employees in the workplace: dress code and surveillance. Continue reading