Adjudicative Bodies Research Articles

Implementation of Economic Social and Cultural Rights under the African Charter on Human & Peoples Rights

The logic behind an affluent execution and imposition of Economic social and cultural rights are covered by the African Charter . As per Odinkalu , economic social and cultural rights must come under the African Charter on Human and Peoples’ Rights . It should have the power to defeat three hurdles are pessimism, History and Ideology’. [1] There are many challenges continuously arising regarding the issue of the rights in question as it is full of summons . Some critics are calling it full of ambitions only. Moreover, there are many evidences that the economic social and cultural rights cannot be administered through legal ways. However , cases like the SERAC case of the Ogoni people in Nigeria have countered this notion while noting that Economic social and cultural rights are indeed capable of imposing obligations of both a positive and negative nature on states and that adjudicative bodies could determine violations of these Rights. This essay assesses to what extent mainly the prospects and challenges faced while doing applications . Practices and Procedures will be assessed and to what extent the Charter really affords adequate protection by ensuring enforcement of these Rights. lacunas in the law such as the claw back mechanisms will be discussed at and how these gaps could be bridged. The essay also assesses the challenges faced by the institutional mechanisms in implementing and enforcing these rights. The essay will also examine the link between the main players in the African Human Rights system and how they interrelate.

Agency of International Adjudicatory Bodies

This article contributes a new vocabulary for studying the agency of international adjudicatory bodies, that is, their capacity to take action and make choices. Zooming in from the wider space of international adjudicative bodies, the article takes international courts as its object of inquiry due to the rapid proliferation of such institutions since the 1990s and the powerful position they have in the global governance. To investigate the complex role of agency in and around such international adjudicatory bodies, the article relies primarily on examples from the fields of human rights and international criminal law. Being able to conceptualize agency exercised by international courts in these fields is particularly important: Human rights and international criminal courts have emerged as challengers of state power and interests. Using these courts as examples, but underlining also broader dynamics of power relevant in other fields, the article highlights how the social and political context in which international adjudicatory bodies are situated helps structure their agency and ability to affect change.

Adjudication vs. ‘Frontier Justice’ in International Economic Law Disputes: The Trump Administration’s Push for Unilateralism in Trade Enforcement

After decades of U.S. efforts to build up the role of international courts in the area of international economic law, the Trump administration is looking for alternative approaches to international dispute settlement that increase the power of states over the process. Rather than rely on neutral adjudicators to interpret the law, to decide whether violations exist, and to authorize countermeasures, the Trump administration wants to be able to take on these tasks itself. There are two primary examples: The administration's view that Section 301 can be used to enforce trade agreements; and its push in the U.S.-China trade talks for a dispute settlement mechanism that does not make use of international adjudication at all. In this paper, we put the U.S. proposals in their international law context, and evaluate their impact. We begin with a discussion of the international law concepts of auto-interpretation, auto-decisions, and auto-enforcement. Next, we examine how international adjudication bodies provide legitimacy to determinations about compliance with international economic law agreements, contributing to their effectiveness. Finally, we turn to the Trump administration’s effort to internationalize unilateral enforcement, through the use of Section 301 as an alternative means of trade agreement enforcement, and more importantly through its efforts in the U.S.-China trade talks to dispense with neutral adjudication and, instead, to provide for unilateral determinations by each party that the other party is not in compliance.

‘Overreaching’ or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body

Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, while untenable, does reflect systemic concerns with the legislative failure of the WTO Members to provide effective checks against the judicial power. This will need to be addressed, or else it will continue to haunt the AB or any other adjudicative body that takes over its role. We propose several fresh solutions to restore a proper balance between the legislative and judicial functions of the WTO, before concluding that as a Member-driven organization, the success or failure of the WTO ultimately depends on its Members.

‘Regional Trade Courts’ in the Shadow of the WTO Dispute Settlement System: The Paradox of Two Courts

As of May 2018, over 650 notifications of RTAs had been received by the WTO Secretariat. Of these, 287 were in force. While the content of the WTO DSU has largely been replicated in most of the ‘regional trade courts’ adjudicatory bodies, emerging features of some of these RTAs are substantially out of line with the WTO DSU. While some RTAs cover aspects currently alien to the WTO, the degree of liberalisation contained within others seems remarkably deeper than under the WTO. Two distinct questions are therefore addressed in this article. The first is whether the proliferation of RTAs threatens in any way the existence of the WTO dispute settlement system, while the second concerns the extent to which this fragmented patchwork of ‘regional trade courts’ contributes to the development of international law. In order to tackle these issues, the article will first explore existing international rules relating to regional trade arrangements.

The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective

The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.

‘Overreaching’ or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body

Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, while untenable, does reflect systemic concerns with the legislative failure of the WTO Members to provide effective checks against the judicial power. This will need to be addressed, or else it will continue to haunt the AB or any other adjudicative body that takes over its role. We propose several fresh solutions to restore a proper balance between the legislative and judicial functions of the WTO, before concluding that as a Member-driven organization, the success or failure of the WTO ultimately depends on its Members.

On judicial autonomy and the autonomy of the parties in international adjudication, with special regard to investment arbitration and ICSID annulment proceedings

AbstractThe article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

The Cross-Fertilization of UNCLOS, Custom and Principles Relating to Procedure in the Jurisprudence of UNCLOS Courts and Tribunals

Cross-fertilization of international law entails interaction of norms in international law and can occur in the context of interaction between different sources of law; different branches of international law or different subject-matter areas; and interaction between a treaty norm belonging to a one area of international law and a customary norm arising from another area of international law. There are different avenues for cross-fertilization of international law: it can result from the application of Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties (VCLT)1 in the process of interpreting a particular treaty, from the application of other rules of international law together with a particular treaty or from reference to the jurisprudence of other international courts or tribunals by adhering to the approach adopted in this jurisprudence. This article examines the question of cross-fertilization of international law in the context of the jurisprudence of the courts and tribunals operating within the dispute settlement system established under the UN Convention on the Law of the Sea (hereinafter ‘UNCLOS’ or ‘Convention’).2 It will demonstrate how these adjudicatory bodies have employed Art. 31 (3) (c) VCLT, Art. 293 UNCLOS which explicitly enables them to apply other rules of international law not incompatible with the Convention, and the international jurisprudence in order to interpret and apply the UNCLOS while situating it the broader context of international law. Note will be taken of UNCLOS provisions incorporating or referring to other rules of international law which also contribute to the cross-fertilization of international law.

The Composition of a Multilateral Investment Court and of an Appeal Mechanism for Investment Awards

This report is a supplement to the report by the same authors entitled “Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Analysis and roadmap” (“CIDS Report”). It analyzes in more depth one aspect already addressed in the CIDS Report, namely the composition of a multilateral investment court (or ITI) and of an appeal mechanism for investor-State awards (or AM). For that purpose, it carries out a comparative analysis of the composition of existing international adjudicatory bodies and in part also arbitral institutions, and seeks to chart the main options for the composition of a prospective ITI and AM. If States were to pursue a reform initiative aimed at institutionalizing investor-State dispute settlement through the creation of these types of adjudicatory bodies, adjudicators would no longer be appointed by disputing parties but would essentially (though nor necessarily exclusively) be chosen by the parties to the instrument establishing the new adjudicatory bodies (section II). This fundamental shift poses a myriad of questions, which the paper seeks to examine.

Theorizing the Judicialization of International Relations

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple actors as decision-makers, governments often do not control the timing, nature, or extent to which political and policy decisions are adjudicated. Delegation—and the associated choice of institutional design features—is thus only the first step in a chain of processes that determine how a diverse array of nonstate actors influence politically consequential decisions.

Theorizing the Judicialization of International Relations

AbstractThis article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple actors as decision-makers, governments often do not control the timing, nature, or extent to which political and policy decisions are adjudicated. Delegation—and the associated choice of institutional design features—is thus only the first step in a chain of processes that determine how a diverse array of nonstate actors influence politically consequential decisions.

The Procedural Cross-Fertilization Pull

This paper argues that there is a distinct ‘pull’ towards cross-fertilization on procedural questions, meaning cross-fertilization between international courts and tribunals may be more likely for procedural issues than for questions of substantive law. As well as describing in a representative manner the substantial amount of cross-fertilization between international adjudicatory bodies that is occurring in relation to procedural issues, we attempt to provide a framework that helps explain this phenomenon. Our core suggestion is that procedural cross-fertilization is an ongoing process and is not just about borrowing by adjudicators, but involves contributions by a range of other actors, including the disputing parties, counsel, administering institutions and secretariats, professional bodies (eg the International Bar Association), and states as drafters of constitutive instruments and operators of control mechanisms. We suggest that three main considerations facilitate procedural cross-fertilization and even make it somewhat likely: the broad degree of discretion afforded to adjudicators on procedural issues; adjudicators’ duty to decide numerous procedural issues that arise throughout the proceedings; and sociological considerations concerning the circulation of a small number of personnel across multiple fora. We then analyse two wide-ranging considerations that counter-balance adjudicators’ broad discretion. On the one hand, various control mechanisms can be, and are, used by states to push adjudicators to remain faithful to their mandates, thus limiting the space for procedural cross-fertilization. On the other, procedural cross-fertilization feeds, and is fed by, an emerging model of international due process that is affecting all areas of international adjudication and that, by consolidating, becomes a constraining frame. This model of international due process has many components and we analyse its influence on two cross-cutting issues: expectations around the independence and impartiality of adjudicators and expectations around the transparency of adjudicatory processes.

Re-Appraising the Statutory and Ethical Roles of Lawyers Pursuant to Nigeria’s Administration of Criminal Justice Act, 2015

Breach of fundamental human rights and rule of law are challenges that have tainted Nigeria’s image and impaired sustainable development of her justice system. These breaches are: torture, distorting bail procedures among others. These illegal practices if unchecked may culminate in the denial of justice. The lawyer’s role therefore, is vital in fostering a culture of enduring dispensation of justice, especially in the light of the many challenges bedeviling Nigeria’s criminal justice system. The paper re-appraises the statutory and ethical roles of lawyers pursuant to the Nigeria’s Administration of Criminal Justice Act, 2015 in facilitating stringent compliance with the Act to safeguard the rule of law. The study is a doctrinal legal research with a library based approach. It adopts primary sources such as statutes, judicial authorities and secondary sources such as textbooks, journals/articles and internet sources. The research recommends among others, reform and strengthening of the judiciary to promote its independence in the administration of criminal justice system. Lawyers must ensure that the Administration of Criminal Justice Act, 2015 fosters dexterous management of cases by all adjudicatory bodies for speedy dispensation of justice, promotion of rule of law, and to end abuse of court processes. The study finds that Nigerian criminal law appears flawed in this regards. This research revealed series of human rights violations in Nigeria and equally highlighted the roles of lawyers in combating these abuses and suggest the use of modern forensic technologies in all courts in Nigeria which is currently lacking and made some recommendations.

Game theory and the legitimacy of international adjudicative bodies

Traditional legal approaches assume that a court is legitimate when its decisions are faithful to the text that expresses the mandate for which it was created (i.e. the Constitution, in the case of domestic courts; and the treaty, in the case of international courts). However, studies employing game theory show that judges of international courts cannot always be faithful to this mandate and provide the single right legal answer to the cases brought before them for it would risk the stability of the whole system. In light of these findings, this paper exposes the implications that game theory brings to legal theory, reviews the concept(s) of legitimacy of courts, and sketches the foundations of a new theory that justifies their authority, which provides a normative framework to assess their activity. This new theory asserts that the role of international courts is not (cannot be) to provide the unique right legal answer on a case-to-case basis in an approach that focuses on individual rights, but to advance and sustain a “legitimate state of affairs” (objective dimension of rights approach) that is in line with the normative goals that motivated the creation of the international organization.

A Data Analysis of the Iran–US Claims Tribunal’s Jurisprudence—Lessons for International Dispute-Settlement Today

Abstract The Iran–US Claims Tribunal was instituted in 1–981 to hear claims from the two governments and their nationals after they broke diplomatic and economic ties. Upon deciding hundreds of cases, the Tribunal has been hailed as an example of a successful international adjudicative body, and as a source of inspiration for international dispute-settlement scholars. Less often acknowledged, however, the Tribunal’s output also constitutes a formidable and under-investigated dataset, ripe for empirical and data-oriented analysis. Such an analysis confirms the Tribunal’s enduring relevance and sheds light on older and newer debates in international dispute-settlement scholarship. The oft-mentioned charge that the Tribunal’s party-appointed members were ‘political’, or the practice of issuing dissenting opinions, can be reviewed under this lens, as they lessons for international law scholars and practitioners today.

The WTO Dispute Settlement System and the Challenge to Multilateralism: Is the Rule of Law in Peril?

The Dispute Settlement System (DSS) of the WTO has been praised as the most successful example of international adjudicatory mechanism capable of resolving efficiently complex disputes in a multilateral framework, moreover inducing or ensuring compliance. The existence of a standing Appellate Body (AB) has been a key element of this success. While the DSS was going beyond the 500 disputes mark in 2015-2016 and new disputes were being tackled, the system has showed “success fatigue” so that practical and more long-term proposal of reforms have been envisaged. Against this positive context, which contrast with the inability of the members of the WTO to conclude further negotiations thus encouraging alternative regional agreements, the US has voiced more and more criticism at the DSS, mainly at the AB, accusing it of “overreach” and of procedural disrespect of the rules. This has lead the Trump administration to block the process of reappointment of AB members to fill vacancies, with the prospect of the demise of the AB at the end of 2019 and a paralysis of the WTO functioning. While these criticisms have been opposed by other WTO Members and rejected by independent observers as groundless, the US has resisted until recently to engage with other WTO members in finding acceptable multilateral solutions. This has given credit to the suspicion that through its challenge to the adjudicatory body of the WTO the Trump administration is in reality challenging the multilateral approach to the governance of international trade relations in general, a key feature of the rule-based international order established after WWII which maintains its value.

From the WTO's Crown Jewel to its Crown of Thorns

The World Trade Organization's (WTO's) dispute settlement system is facing “unprecedented challenges,” with the current U.S. government waging a “stealth war” on the Organization's Appellate Body (AB). The tactics of this war include procedural objections to the (re)appointment of AB members—those individuals selected to sit in Geneva and rule on trade disputes. Countries have blocked appointments in the past, but the Trump administration's strategy to effectively shut down the AB's ability to hear disputes—by bringing the number of sitting judges below the required three to hear a dispute—represents a new development. In short, the trade regime is dying a slow, piecemeal death, with American challenges “killing the WTO from the inside.” Yet the sources of this crisis are not new. The organization's judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have now reached a boiling point. In this contribution, I first describe the sources of the current impasse before discussing how the WTO's adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward.

The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective

The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remains to be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the EVIPA drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The EVIPA may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.

Jedan aspekt univerzalne jurisdikcije u savremenom krivičnom pravu - slučaj Ould Dah

Along with the intensive development of international criminal law, the role of the jurisdiction whose primary connecting factor does not focus on protection of individual state's vital interests is becoming more important. The concept refers to universal jurisdiction which is not based upon traditional grounds of jurisdiction i.e. upon principle of territoriality, principles of active and passive personality and protective principle. Instead, it builds upon the interests and needs of the entire international community in preventing certain international crimes. It primarily refers to international crimes stricto sensu (core crimes): the crime of genocide, crimes against humanity and war crimes. In cases where, for whatever reason, the reaction of an international adjudicative body such as the International Criminal Court is lacking, or where a state which usually has a forum but in particular case refuses to prosecute (usually because of political opportunism) or cannot prosecute - the universal jurisdiction could step in and ensure criminal prosecution. In other words, the concept of universal jurisdiction refers to genuine international interest in putting an end to impunity for perpetrators of grave crimes, as specified in the Preamble of the Resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes. In comparative law, the universal jurisdiction also refers to some crimes other than core crimes. In the first place, it refers to the so-called treaty-based crimes, essentially transnational crimes. In this paper we have discussed whether this concept when envisaged for transnational crimes, or for that matter any other concept deriving from the aut dedere aut judicare rule, contributes to their universal character i.e. their positioning as crimes with universal significance. In that matter, we have analyzed two cases from international jurisprudence: the Ould Dah case and the ruling issued by the International Court of Justice in case Belgium v. Senegal, Questions relating to the Obligation to Prosecute or Extradite.