V.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW

F v. Bevándorlási és Állampolgársági Hivatal, Case C-473/16, Third Chamber, Judgment, 25 January 2018 Maximilian Schrems v. Facebook Ireland Limited, Case C-498/16, Third Chamber, Judgment, 25 January 2018 European Commission v. Republic of Poland, Case C-336/16, Third Chamber, Judgment, 22 February 2018 Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs,...

INTRODUCTORY NOTE

This chapter discusses the 2018 jurisprudence of the International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc committees, which addressed among others the notion of “investment” under Article 25 ICSID Convention, illegality in the making of an investment, and the jurisdictional or admissibility nature of waiting periods qualifying host state consent to investor-state arbitration. They also dealt with direct and indirect expropriation and broadly affirmed the Methanex/Saluka doctrine. In this respect, arbitral tribunals emphasized their limited power of review, stressing that it was not their task to sit in judgment over difficult political and policy decisions made by states. In regard to fair and equitable treatment, tribunals have emphasised that investors’ due diligence plays a crucial role in measuring the legitimacy and reasonableness of their expectations and that proportionality as well as reasonableness are important considerations when assessing the scope of a state’s police powers. ICSID jurisprudence has also firmly adopted the three-step test developed by NAFTA tribunals in order to determine possible violations of the non-discrimination standard of national treatment: (i) to identify the relevant subjects for comparison; (ii) to consider the treatment each comparator receives; and (iii) to consider any factors that justify any differential treatment. Furthermore, ICSID ad hoc committees continued to apply a very restrictive standard of review under Article 52 ICSID Convention.

Enhancing Civilian Risk Mitigation by Expanding the Commander’s Information Aperture

Debates continue over the significance of reverberating effects of an attack during armed hostilities and how they implicate proportionality assessments. Some argue commanders bear an obligation to integrate consideration of such effects in their proportionality judgments; others argue that such effects are too speculative. But this debate reveals the vital role of process in attack judgments. That process will ideally provide commanders with information related to judgments that seek to ensure the balance between military necessity and humanity, relying on battle-staff experts working through a doctrinal process to filter and refine such information. In this chapter, we suggest a new staff principal: the civilian risk mitigation expert. Such an expert will contribute to expanding the commander’s aperture related to civilian risk considerations and better enable the commander to foresee and consider all attack effects, thereby enhancing both civilian protection and the legitimacy of attack judgments.

The Continuing Jurisprudential Cross-Fertilization in the Case-Law of International Tribunals in Their Common Mission of Realization of Justice

The continuing jurisprudential cross-fertilization by contemporary international tribunals keeps on evidencing their essentially complementary labour, and the unity of the law, in the exercise of their common mission of the realization of justice. This extends to distinct domains of international law wherein those tribunals operate. Jurisprudential cross-fertilization fosters the cohesion of law and the endeavours of contemporary international tribunals to contribute jointly to the humanization and the progressive development of international law.

Some Reflections on the Forthcoming Centenary of the Statute of the Hague Court (PCIJ and ICJ)

The Statute of the Hague Court (PCIJ and ICJ) will in 2020 be completing one century of existence. The operation of the Court has established and clarified the basis of international jurisdiction. The experience accumulated along the decades in the settlement of contentious cases has developed the Court’s reasoning beyond the strict inter-state dimension. Its pioneering advisory jurisdiction much expanded, in examining important questions of international law. The projection now of the statute into a new century will be to the benefit of a growing number of justiciables, and of the international community as a whole.

When Practice Doesn’t Make Perfect: The Responsibility to Protect in Lived Reality

The implementation of principles such as the Responsibility to Protect (R2P) is notoriously inconsistent. Some crises attract significant political attention and resources, others much less. This chapter briefly examines the question of consistency and inconsistency in the implementation of R2P since 2005. It argues for a broader understanding of protection, one that draws on a comprehensive universe of relevant cases and that includes all the different types of actors engaged in protection activities. It does so in four parts. The first outlines the normative standard established by R2P and the question of legal and moral rights and duties that are implied by this project. The second explains some of the recent crises that have exposed a gap between principle and practice. The third examines the question of how we understand and evaluate consistency in protection practices. The fourth provides a preliminary examination of practice since 2005, focusing on the United Nations’ experience on the ground.

I.1 INTRODUCTORY NOTE

The International Court of Justice in 2018* * Professor John G. Merrills, who had heretofore served as rapporteur on the International Court of Justice (ICJ), passed last year. Consequently, the activities of the ICJ in 2018 will be covered by a newly appointed rapporteur in an Introductory Note (IN) for the next edition (2020) intended to report on the work of the ICJ in both years 2018–2019. Hence, the 2019 edition of the ...

INTRODUCTORY NOTE

The African Court on Human and Peoples’ Rights is the newest of the three regional human rights courts. This brief analysis provides an overview of the most salient aspects of the Court’s 2018 case-law with respect to jurisdiction, provisional measures, admissibility, merits decisions, and reparations orders. Continuing its trajectory of increasing productivity, the Court in 2018 handed down the highest number of merits decisions in its brief history. As in previous years, most of these were fair-trial-related cases against Tanzania. The Court’s 2018 case-law contains a number of firsts. In Gombert v. Côte d’Ivoire, the Court for the first time ruled as inadmissible a case previously settled by an African subregional court, the Court of Justice of the Economic Community of West African States. In Anudo v. Tanzania, dealing with the right to nationality, the Court for the first time found a violation of the Universal Declaration of Human Rights, on the basis that the Declaration has attained the status of customary international law. In Makungu v. Tanzania, it for the first time ordered the applicant’s release as an appropriate remedy for serious fair trial violations. The Court’s most significant decision of 2018 is the Mali Marriage case, in which it held aspects of the 2011 Malian Family Code to be in violation not only of human rights treaties emanating from the African Union, but also the UN Convention on the Elimination of all forms of Discrimination Against Women.

The Legal Status of Decisions by Human Rights Treaty Bodies

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. This chapter starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The chapter then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on states to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The chapter argues that the alleged existence of a general procedural obligation on states to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

VII.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW

Caso Poblete Vilches y Otros v. Chile, Fondo, Reparaciones y Costas, Sentencia de 8 de Marzo de 2018, Serie C No. 349 Caso V.R.P., V.P.C. y Otros v. Nicaragua, Excepciones Preliminares, Fondo, Reparaciones y Costas, Sentencia de 8 de Marzo de 2018, Serie C No. 350...