Photo Credit: https://www.flickr.com/photos/equatorial_guinea/
Guest Post by: Arpan Banerjee, NALSAR University of Law
Thirty-three years after its withdrawal from the Organisation for African Unity, the predecessor of the present African Union (AU), Morocco was admitted in January as a member state of the pan-African regional body. At the 28th AU Summit held in Addis Ababa, 39 of the 54 members of the African Union voted in favour of Moroccan entry, making it the final nation in Africa to join. Moroccan entry into the AU, however, has been met by resistance from certain major players in the African Union, particularly Algeria and South Africa, due to the Morocco’s involvement in the ongoing dispute in Western Sahara. This piece seeks to analyze the impact of Moroccan entry to the AU on the dispute regarding the statehood of the Sahrawi Arab Democratic Republic (SADR)–the contested territory in Western Sahara. It explores the key question of whether admission to the AU, to which SADR is a member, amounts to recognition of the SADR as a state and creates obligations on Morocco under international law.
Continue reading Morocco’s Entry into the African Union and the Revival of the Western Sahara Dispute
By: Christy Chidiac
Geopolitical context and international arbitration are intertwined. Contemporary political events illustrate an undeniable retreat of the most developed nations towards protectionism. In reaction to Brexit, many commentators concluded that enforceability of international commercial arbitration awards is safe thanks to the applicability of the New York Convention. Conversely, even if the enforcement of ICSID investment arbitration awards is automatic due to Article 54 of the ICSID Convention, its execution may depend on States willingness to render it efficient through the diverse applicable national laws on immunity from execution. After all, this decision falls within States sovereignty, and at the heart of States decisions, lies public opinion. Public disapproval towards globalization goes hand in hand with the growing mistrust for foreign investment and investment arbitration, as showed by the European protests to the recourse of Investor State mechanism as part of the TTIP or CETA. In this context, arbitration mechanisms are related to globalization and corporation’s governance, hence the fundamental risk is that limitations on arbitration may become popular. As Professor David Caron Caron asserts, State acts to reform the investment treaty regime are a response to, or even a form of, backlash against that regime. Procedural reforms of investment arbitration in the past fifteen years focused on an increase of transparency, including possibilities for public hearings, and publication of arbitral documents. Additional substantive reforms also took place, with more detailed treaties provisions. Moreover, commercial arbitration is not immune from the risk of growing mistrust, as it may adjudicate for illegal activities for instance, under protection of confidentiality. These observations raise questions about the possibility of rendering international arbitration more democratic. Moreover, may public opinion and political context not only affect the transparency but also the efficiency of international arbitration mechanisms? If so, how should the effects of contextual fluctuations on arbitration efficiency be countered? The recent evolution of French legislation illustrates these issues.
Continue reading Enforcement of Investment Arbitration Awards in the Context of Protectionism and Backlash
Photo Credit: Doran
Guest Post by: Arthad Kurlekar & Arindrajit Basu
On August 7th of this year, the Obama Administration finally declassified its internal guidelines (referred to as Presidential Policy Guidance’ or ‘PPG’), which supposedly details the United States’ parameters on the killing or capturing of alleged terrorists around the globe. The document provides some insight into the drone war bureaucracy leading to strikes in Pakistan, Yemen, and Somalia. Despite redactions at crucial junctures in the document, it ostensibly answers many questions posed by the global community regarding the lawfulness of these clandestine programs. A closer look, however, shows that the document largely plays implicit lip-service to principles of International Law without providing concrete evidence that illustrates how this normative framework is implemented in the decision-making process. In a two-part post, we seeks to deconstruct and analyze the lacunae in this document with reference to lethal targeting by considering two key principles of International Law: (1) The Principle of Distinction and (2) Sovereign Equality. The first post deals with distinction while the analysis on sovereign equality is left for the second post. We argue that the PPG fails on two counts: first it fails to provide a nuanced classification of the targets in accordance with IHL and second, it fails to operationalise IHL principles when carrying out targeted killings.
Continue reading MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART I