> Wsifran Chise Blog - Public Law - wsifranchise.info http://wsifranchise.info en j.d.maaskant@law.leidenuniv.nl Copyright 2017 2017-03-23T13:38:00+00:00 The State of Dutch Democracy: Dancing on the Deck of the Titanic? - wsifranchise.info http://wsifranchise.info/articles/the-state-of-dutch-democracy-dancing-on-the-deck-of-the-titanic http://wsifranchise.info/articles/the-state-of-dutch-democracy-dancing-on-the-deck-of-the-titanic#When:07:46:00Z The state of Dutch democracy is uncertain. After last week’s elections, the stability of the political system appears guaranteed for the next couple of years. We cannot be sure, however, what will happen afterwards. This marks a change from the past.]]>

So Geert Wilders’ Freedom Party has not ended first in the Dutch parliamentary elections of 15 March 2017 after all. But does this mean that Dutch democracy is healthier than ever before, as political scientist Tom van der Meer put it in a German newspaper article on the morning of the elections? Given the relatively high turnout in this election, among other things, it may well seem that the answer to this question has to be in the affirmative. However, at least three concerns remain regarding the state of democracy in the Netherlands.

To begin with, although the Freedom Party did not finish first, it has now become the second largest party in the country. For this reason, the Dutch would be ill-advised to believe that they can put the topic of populism and its relationship to democracy to one side. On the contrary, as Jan-Werner Müller has argued in his book What is Populism? (2016), liberal democracies have quite a bit of homework to do. For example, if populism is characterised by antipluralism, what exactly do they believe that pluralism is good for, if anything?

Secondly, the dramatic loss of the Labour Party inevitably raises the question whether Dutch party democracy is grinding to a halt? Of course, scholars have already been pointing to the need to start thinking (again) about how to organize democracy without parties for quite some time. Although a simultaneous gain such as that by the GreenLeft party demonstrates that even now the political party may not be over yet, the other former system party of the Christian Democrats has booked its second worst result in modern political history as well.

Thirdly, to the extent that the historic loss of the Labour Party is the result of its having been the junior partner in a cabinet with Prime Minister Mark Rutte’s Liberals, the volatility of the electorate is once again a striking feature of the election outcome. Recently, this topic was even made a subject for consideration by the new State Commission on the Parliamentary System. What seems clear, is that this time the results could easily have been different, and that in the next election we may be in for new surprises.

As was already argued before the elections, the ‘levelling’ of the party political landscape is perhaps the most notable aspect of this particular election, in that the Liberal Party is the second smallest of the largest parties ever represented in the Dutch Lower House. On the one hand, this does not seem like a major change, since the Netherlands has always been a plural country. On the other hand, at least four parties are now needed to form a new majority cabinet, and voters could find themselves without a credible alternative in the next elections.

What this means, is that one does not have to be a pessimist to conclude that it is too early to tell whether democracy in the Netherlands is indeed healthier than ever, or that the Dutch are merely dancing on the deck of the Titanic.

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Public Law, 2017-03-21T07:46:00+00:00
Jurisdiction in the Moon Village - wsifranchise.info http://wsifranchise.info/articles/jurisdiction-in-the-moon-village http://wsifranchise.info/articles/jurisdiction-in-the-moon-village#When:13:28:00Z The Moon Village is a trendsetting project involving multiple uses by multiple users. The industry has no way of knowing whose governance they might be swept off to. So it is necessary to clarify rules on jurisdiction allocation in this community.]]>

Before stepping one foot out of Earth’s door, the space industry still has no way of knowing whose governance they might be swept off to. Investors may exhibit reluctance due to fear of an ambiguous legal environment. Therefore, if rules can be clarified on the jurisdiction allocation in this multinational community, then industry investment will gravitate towards this venture. In this respect, the Intergovernmental Agreement, signed in 1998, on the International Space Station (ISS) could provide an example; it deals with jurisdiction among parties in Art 5.2 and Art 22. Now 20 years have passed and legal theories and jurisprudence have advanced greatly. The Moon village will give rise to much more complicated activities than ISS. Humans, robots, rovers, scientific activities, business, tourism and mining will all take place at one location.

Traditionally, jurisdiction is related to sovereignty and is primarily territorial, as we can see from the authoritative Lotus judgment mentioned below. However, on the Moon, no country can assert sovereignty. So we may have to develop a new appreciation of jurisdiction with regards to celestial bodies. The issue we face is either a ‘jurisdiction vacuum’, where no country exercises control, or a ‘jurisdiction conflict’, where more than one country exercises control. These two problems have existed on Earth for centuries, so we can gain knowledge by referring to those theories and precedents.

In practice, legislative/prescriptive jurisdiction and adjudicative jurisdiction often go hand in hand: when States adopt legislation with extra-territorial applicability, they generally allow their domestic courts to adjudicate on claims based on that legislation.

The vintage international law case, ‘Lotus’ (1927), placed emphasis on territoriality due to sovereignty concerns, but it leaves open the issue of jurisdiction – ‘as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable’. It is not clear whether the Moon Village can qualify as ‘other cases’. We could argue that such a case of res communis omnium may demand different rules.

There are a range of rationales for establishing jurisdiction. Ratione Loci and Ratione Personae generally carry more weight. We are able to develop arguments to support each of them. This is how  potential tension arises between the Outer Space Treaty (OST) and the Cape Town Convention.

One interpretation of Article VIII OST is that only the State of Registry has jurisdiction of any kind over a space object and any judicial disputes about that space object. This could mean, the State of Registry has exclusive jurisdiction to regulate the space object, and exclusive jurisdiction to adjudicate disputes concerning that space object. If this approach is adopted, then Article VIII will sweep away all jurisdictional provisions in the Cape Town Convention and Protocol. 

A narrower interpretation is that Article VIII’s jurisdiction is non-exclusive, thus enabling other states to assert jurisdiction under proper sources of international law, treaty and/or customary international law. This is a literal interpretation.

Another narrow interpretation, by referring to the context, is that Article VIII only grants prescriptive jurisdiction. This is a contextual interpretation – “jurisdiction and control” as written in OST. So maybe there is no conflict? OST is for prescriptive jurisdiction, whereas Cape Town is for adjudicative jurisdiction.

In reality, in judicial practice, there have been two notable cases that adopted different tests. In Akpan v Shell, a Nigerian sued Shell NL and its subsidiary Shell Nigeria for environmental damages.  Shell Nigeria was incorporated as an independent legal entity in Nigeria, the damage occurred in Nigeria and the plaintiff is Nigerian. The difficult question is, with so many Nigerian elements isolated from the Netherlands, can a Dutch court assert jurisdiction? The Court clarified its decision by stating that it was foreseeable that a Dutch could have jurisdiction, given the connection between Shell Nigeria and its parent company in NL.

So we are left to think: what can we foresee with regard to the Moon village? The connection between Moon personnel/objects and the home country may vary from case to case. How strong will such a connection need to be to satisfy the ‘foreseeability’ test?

In contrast, the US Supreme Court used a different approach and rejected such jurisdiction in the case Kiobel v Shell. Again, this concerned a foreign plaintiff suing a foreign defendant for acts or omissions occurring completely outside the US. The Court held, ‘[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.’ What “touch and concern” and “sufficient force” may be, is not clear. The Court further held, that in upholding extraterritorial jurisdiction, it depends on how much a court may interfere with its government’s foreign policy.

So it all seems to boil down to the same old cliché again: it all depends on the development of international relations. The same was said in the early PCIJ advisory opinion, Nationality Decrees in Tunisia and Morocco (1923), and was underpinned by the doctrine of domaine réservé.

My conclusion is that States may want to negotiate on the rules of jurisdiction in the Moon village to stay ahead of conflicts. Bargaining chips can include the level of control over personnel, space, the link with the home country etc. As Madame Haigneré said, ‘C’est un projet de civilisation. C’est le devenir de l’humanité.’ I too am confident that we can, and will, solve this in a civilized way.

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Public Law, 2017-03-20T13:28:00+00:00
Arbitration Institute: Share a Piece of Cake? - wsifranchise.info http://wsifranchise.info/articles/arbitration-institute-share-a-piece-of-cake http://wsifranchise.info/articles/arbitration-institute-share-a-piece-of-cake#When:12:01:00Z Recently several arbitration institutes released new Arbitration Rules, some expanding the scope of their administration to include investment disputes. The institutes wish to share a piece of the cake with ICSID, but they also face certain challenges.]]>

Between December 2016 and March 2017, several international arbitration institutes, based in both Asia and Europe, released their new Arbitration Rules. Some international arbitration institutes have expanded the scope of their administration on investment disputes in the new arbitration rules, such as the latest Shenzhen Court of International Arbitration (SCIA) rules which came into force on 1 December, 2016; the first edition of the Singapore International Arbitration Center (SIAC) Investment Arbitration Rules came into force on 1 January, 2017; meanwhile the new Stockholm Chamber of Commerce (SCC) Rules also entered into force. Recently, the International Chamber of Commerce (ICC) also launched its new international commercial arbitration rules which came into force on 1 March, 2017. It seems that the arbitral institutes may wish to share a pierce of the cake with the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID), but there are also some challenges that the new rules may face. 

What is new?

SCIA Rules  The new rules allow SCIA to administer investor-state arbitration under the UNCITRAL Rules. Article 2.2 states that, the SCIA accepts arbitration cases related to investment disputes between states and nationals of other states. Article 3.4 states that, where the parties agree that dispute referred to under Article 2 of the Rules be governed by the UNCITRAL Rules, the SCIA shall administrate the case in accordance with the UNCITRAL Arbitration Rules and the SCIA Guidelines for the Administration of Arbitration Under UNCITRAL Arbitration Rules. The SCIA has become the first arbitration institution on mainland China to administer investor-state arbitration and this is also the first time the SCIA has revised its rules since its launch in 2012, in the wake of the so-called "CIETAC split”.

SIAC Rules  Compared to the SCIA’s administration under the UNCITRAL Rules, SIAC has become the first commercial arbitration institution to release a separate set of rules customised to international investment arbitration. The SIAC Investment Arbitration Rules highlight different perspectives of investment arbitration including emergency arbitration, third-party funding proceedings, submissions by non-parties, confidentiality and transparency.

SCC rules SCC is the second largest arbitration institute in the world for the administration of investment disputes, and the role of SCC in investment disputes includes acting as appointing authority under the UNCITRAL Arbitration. The new rules concern the interests of actors who are not parties to the arbitration, but who can bring an important perspective to the decision-making process of the tribunal. Therefore SCC has introduced Appendix III Investment Treaty Disputes which consists of  4 new provisions that supplement the Arbitration Rules and that apply to cases based on a treaty providing for arbitration of disputes between an investor and a state.

ICC Rules Being a leading dispute resolution provider, ICC plays an important role in international commercial arbitration. The 2017 Rules of ICC provide an introduction on expedited procedure and provide greater transparency to the arbitration process. Unlike the other rules above, the scope of the new ICC Rules does not extend to investment arbitration.

Challenges?

We see that several international arbitration institutes have expanded the scope of their administration on investment disputes in their new arbitration rules. Many challenges remain that the new rules may be confronted with which are discussed below.

Domestic law perspective   Compared to SIAC, the SCIA rules state that it may administer investor-state arbitration under UNCITRAL Rules. As the first arbitration institute in mainland China to have included investor-state rules, SCIA may try to make a reasonable and proper approach. Under the 1994 Arbitration Law, Article 2 states that Contractual disputes and other disputes over rights and interests in property between citizens, legal persons and other organizations that are equal subjects may be arbitration, while Article 3 states that marital, adoption, guardianship, support and succession and administration disputes may not be arbitrated. It could be said that investor-state disputes do not fit into either article. Article 72  further clarifies, foreign-related arbitration rules may be formulated by the China Chamber of International Commerce in accordance with this Law and the relevant provisions of the Civil Procedure Law. The new SCIA rules do not violate the 1994 Arbitration Law, while the 1994 Arbitration law does not clearly recognize the investor-state clause of the SCIA rules. In the interest of consistence between the domestic law and arbitration rules a further analysis is needed.

Enforcement   ICSID is the largest institute to administer investor-state arbitration cases and the ICSID Convention which was signed and ratified by most  countries offers the parties fully structured arbitration procedures, including enforcement. However, the SCIA and SIAC rules ,for example, lack a practical mechanism to enforce awards and may also take some time to persuade the parties to apply these new investment rules.

Share of the Cake?

We may wonder why many arbitration institutes have started to modify their rules. Do these institutions wish to share a piece of the cake with ICSID and accept investor-state arbitration cases? Are they indirectly raising their influence by modifying the rules? What will attract a claimant to file a request-, less cost or a more effective process?  SCC has modified its rules to be consistent with current developments and both SCIA and SIAC have taken their ‘first’ steps. How the SCC administers investment cases may provide some guidance to SCIA and SIAC. And more interestingly, ICSID has issued an invitation to submit suggestions for amendments to the rules and the secretariat has invited all those interested in the ICSID process to provide suggestions regarding potential amendments to the ICSID rules. Although ICC is still remaining silent on investor-state disputes, it is clear that many more arbitration institutions will start to want a share of the investor-state arbitration cake.

The author wishes to thank Ms. Weiwei Wu, CIETAC case manager for her review.

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Public Law, 2017-03-14T12:01:00+00:00
Something Fundamental is at Stake in the Dutch Parliamentary Elections - wsifranchise.info http://wsifranchise.info/articles/something-fundamental-is-at-stake-in-the-dutch-parliamentary-elections http://wsifranchise.info/articles/something-fundamental-is-at-stake-in-the-dutch-parliamentary-elections#When:13:24:00Z Geert Wilders’ PVV Party believes that Islam is a totalitarian ideology and not a religion, and thus Muslims are not equally entitled to the same freedom of religion or belief as other believers. This view is incompatible with liberal democracy.]]>

Seldom has there been so much interest from the international media in the outcome of a parliamentary election in the Netherlands as in the election to be held on 15 March 2017. The explanation for this lies in last year's Brexit vote in Britain and the election of President Trump in the United States on the one hand, and the elections that will be held later this year in France and Germany on the other hand. The question this raises is whether voters in the Dutch elections, which take place in between these events, will follow the example of British and American voters and thus set the stage for a continuation of right-wing populist victories. It is to be expected that such an election result would put the EU under even greater pressure than is already the case because of the Brexit vote.

Although the media are therefore right to focus on the question of whether Geert Wilders’ Party for Freedom (PVV) will end up being the largest party, which despite its recent decline in the polls might still be the case, it is submitted that this matters - and perhaps even more so - from a different perspective as well. In a recent interview with German TV, Mr. Wilders indicated that his party believes that Islam is not comparable to other world religions such as Christianity or Judaism, but rather to totalitarian ideologies like Communism and Fascism. As a result, Muslims in his view are not entitled to the same constitutional and international protection of the right to freedom of religion or belief as other believers.

A similar discussion about the nature of Islam has been taking place in the United States since at least the publication of the report Shariah: The Threat to America by the Center for Security Policy in 2010. Recently, Sebastian Gorka, a deputy assistant to President Trump focusing on national security, left open for the second time whether the President believes Islam to be a religion: 'This isn't a theological seminary, this is the White House, and we're not going to get into theological debates'. That such a position can easily lead to religious discrimination is manifested not just in the United States, but also by the Freedom Party's (draft) election manifesto of 1 A4 which calls for a 'de-Islamification' of the Netherlands.

Without extending the protection of the right to freedom of religion or belief to all believers, it is difficult to conceive how the Netherlands could still pretend to be a liberal democracy. It is precisely for this reason, that at least one constitutional scholar in the 1930s already argued that a political party should respect everyone's geestelijke vrijheid [freedom of religion or belief] and equal protection before the law in order for it to be admitted to the democratic exchange of ideas. As a recent special issue of the Dutch legal magazine Nederlands Juristenblad on the elections, representation and the parliamentary system points out, several scholars are indeed warming up towards the idea of increased party regulation.

As I argue in this special issue, a good place to start would be for the Dutch Lower House not to let the Freedom Party oversee the coalition talks after the elections, as would be the custom in the event it receives the most votes. To be continued next week.

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Public Law, 2017-03-13T13:24:00+00:00
Towards a European ban on microbeads - wsifranchise.info http://wsifranchise.info/articles/towards-a-european-ban-on-microbeads http://wsifranchise.info/articles/towards-a-european-ban-on-microbeads#When:14:19:00Z The Plastic Soup Foundation is campaigning to ban microbeads in cosmetics products. Students of the Leiden Advocacy Project on Plastic (LAPP) wrote a memo providing legal guidance on the prohibition of microbeads in the EU.]]>

Have you ever thought about plastic in your toothpaste? Probably not. It has been common practice for the cosmetics industry to add tiny little particles of plastic, called microbeads or microplastics, to everyday products such as shampoo, scrub products and toothpaste. Since the microbeads end up in our household waste water, they eventually end up in the ocean leading to environmental pollution on a global scale which is probably irreversible. The tiny size of the particles makes them hardly visible to the naked eye, so they are a more or less hidden threat to the environment and human health.

The Plastic Soup Foundation

Since 2012, the Dutch NGO the Plastic Soup Foundation (PSF) has been campaigning for a European ban on microbeads in cosmetics. Although the campaign was initially inspired by environmental considerations, recent research has identified serious human health risks due to exposure to microplastics, for example through the consumption of seafood and other food products, drinking water and through the air. Commissioned by the European Commission, consultancy agency Eunomia identified three options to regulate microbeads: the Cosmetics Regulation, the REACH Regulation and the Ecodesign Directive. The Plastic Soup Foundation wanted to know whether these regulations are indeed suitable for accommodating a ban on microplastics and what procedures should be followed. The Leiden Advocacy Project on Plastic (LAPP) was requested to review the three options from a legal perspective.

Cosmetics Regulation

The Cosmetics Regulation is more or less applicable to all cosmetics products. It aims at a high level of human health protection while establishing an internal market for cosmetics. Since the Cosmetics Regulation only regulates the safety of a product during normal use, and thus not indirectly via the food chain or water, the product itself should pose a risk to the health of the user. This could be true for products containing microbeads such as toothpaste and lip gloss, which can be swallowed, and creams, which can penetrate the skin. The EU Scientific Committee on Consumer Safety plays a central role in assessing whether substances can be restricted or banned for use in cosmetics products. Restricting microbeads in cosmetics products requires at least one amendment to the Annexes and the standard legislative procedures of the EU will apply.

REACH Regulation

While the Cosmetics Regulation only applies to cosmetics products, the REACH Regulation regulates the registration, evaluation, authorisation and restriction of chemicals in general. The purpose of the REACH Regulation is to ensure a high level of protection of human health and the environment, as well as the free movement of substances on the internal market. There are several levels of restriction. A substance may be used under certain conditions or banned in a specific product category or - in the case of the most dangerous substances – may not be put on the market or allowed to be used at all. From a quick examination of the list of restricted substances, it appears that most of the substances are placed on the restriction list for reasons pertaining to risks to human health, primarily due to being carcinogenic or toxic for reproduction. This might give rise to the suggestion that plastic particles may not reach the severity threshold required by the REACH, but further research regarding the effects of microplastics on organisms including humans should clarify this. Moreover, a substance can also be restricted for environmental reasons, such as the persistence of substance. This could be the case for microplastics, because plastics are highly persistent and hardly degrade at all under normal circumstances. A first step in restricting microbeads under the REACH Regulation is the compiling of a ‘dossier’ on substances by the European Chemicals Agency. After assessments by several committees and multiple consultation rounds, an amendment must be adopted. Further scientific research regarding the toxicity and persistence of microplastics could be helpful in this procedure.

Ecodesign Directive

While the Ecodesign Directive was adopted in 2010 with the aim of improving the energy efficiency of products, it has been suggested that the directive is also suited to improving a product’s resource efficiency. Its preamble explicitly refers to ‘extending its scope beyond energy-related products’ and the Commission has called ecodesign pivotal in minimizing waste. By setting standards regarding waste treatment and recycling, the use of microplastics could be banned in certain product groups. But, before this can happen, an amendment must be adopted to include resource efficiency as a leading requirement for design standards. Hence, banning microbeads via the Ecodesign Directive requires multiple amendment procedures; first to amend the Ecodesign Directive itself and second to set standards for certain products.

Challenges  

As microbeads are increasingly being acknowledged as an urgent environmental problem, a quick solution is preferred. The three options studied all require multiple procedures and further implementing measures to establish a complete ban on microplastics in all cosmetics products, but also in other products  - very much a time-consuming process in the EU. To speed up the removal of microbeads from cosmetics products, the PSF also looked at the adoption of voluntary agreements with the European cosmetics industry. However, Cosmetics Europe, the European branch organisation, was very hesitant to discuss any branch agreement for reasons related to EU competition law. Voluntary agreements between manufacturers are regulated by the rules of EU competition law and huge fines have been issued for price fixing in the margins of a voluntary environmental agreement. Therefore, enthusiasm for branch agreements has generally faded. In our view, a voluntary phase-out of microbeads by manufacturers remains a possibility, but only under the strict conditions of EU competition law and only on a completely independent and voluntary basis. A further issue is the adoption of an all-encompassing definition of microbeads, as microbeads can consist of several kinds of microplastics. The definition of a substance is essential when incorporating it into a directive or regulation. National initiatives banning microbeads, such as those in the United States and Canada, may function as guidelines on that matter and will be further studied by LAPP.

While a definite solution may take some time, the current momentum for action on plastic pollution, as well as resource efficiency and the circular economy, should stimulate the European Union to act powerfully and effectively. At LAPP, we are honoured that our work is contributing and will continue to contribute to the campaign of PSF and other organisations for a ban on microbeads.

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Interdisciplinary Study of the Law, Public Law, 2017-02-17T14:19:00+00:00
Segregation and Dutch schools - wsifranchise.info http://wsifranchise.info/articles/segregation-and-dutch-schools http://wsifranchise.info/articles/segregation-and-dutch-schools#When:08:07:00Z How to maintain a peaceful society while pluriformity of population is growing? Fact finding concerning the role of freedom of education/Islamic schools and possible solutions to segregation, with a touch of Kwame Anthony Appiah are this blogs subject.]]>

How the Netherlands could profit from Appiah’s vision on identities

There is currently a lot of noise concerning Dutch schools, segregation, the growing pluriformity of the Dutch population and the issue of building and sustaining a peaceful society. It ranges from a general fear, felt by many and put into words by Wilders, that Islamic schools will educate children against integration in Dutch society.  And then there is this notion, held by many people, that the growing segregation between so- called white and black schools is due to Article 23 of our constitution, which grants religious schools the right to refuse children from a different background. 

Article 23 Constitution

For the past hundred years, the Netherlands has known a schooling system in which the State finances not only public schools, but also private schools founded by parents on religious grounds. This constitutional right is established in article 23. Today, two thirds of all Dutch children go to a school  that is at least officially religious (I will get back to this subject further later on). Many people fear that schools based on one denomination will try to indoctrinate their pupils with that particular religion, rather than teaching them open mindedness. Others fear that private schools will turn down pupils from a different denomination, thus further contributing to growing segregation.

Underlying this fear is the idea that a society needs all its inhabitants to share its most important values, and that different religions (especially Islam) have different values. This would result in schools with different denominations producing kids with different values, thus endangering the goal of maintaining a peaceful society.

Facts

Most religious schools are based on Christian denominations and, with the exception of a few schools based on fundamentalist protestant principles, these have all changed with the times and become very pluriform. Although officially Catholic or Protestant, they have in fact become secular. Their population is made up of a few kids with religious parents, many more kids with parents who have backgrounds in the official denomination, and many kids with secular parents or parents from a different denomination. Their teaching is pluriform in every sense of the word.

As for the fear that Islamic schools endanger the cohesion of our society: only 0.6% of Dutch kids attend an Islamic school and of the 43 Islamic schools, 80% are also pluriform in their curriculum. These numbers clarify how insignificant the problem is.

Is a focus on values useful in order to build a peaceful, pluriform society?

Kwame Anthony Appiah, a British Ghanaian philosopher, draws our attention to the fact that when we discuss values at a higher abstract level, we probably all have the same values: do not kill, do not steal, do not do harm onto others…who could object? It is only when values become thicker as he says, or more specific, that our opinions will diverge. And not only between cultures or religions. Even within one family the question of whether euthanasia is murder or merciful assistance can lead to big disputes. So the question of whether values are shared does not seem helpful when trying to find the key to peaceful cohabitation between people of different backgrounds.

Identities

Appiah implores us to pay more attention to identities and especially to the fact that each of us harbors many identities. Identities, according to Appiah, are a combination of what I would call roleplaying and (informal) membership of a group. When I am at work, I am usually first and foremost functioning in the role of an employee. But when I get a call at work that my child has been taken to hospital, my role as a parent – normally quite dormant in the workspace – all of a sudden takes over and I rush off to hospital.

Appiah makes the point that everybody harbors many identities that will sometimes conflict with each other, just as laws can conflict, and the context of the moment will help to determine which identity takes command. If my kid had only caught a slight cold, I would probably have left him with the housekeeper and stayed in the office.

Appiah contends that the same goes for things like citizenship and religion. He gives the example of his Ghanaian father, who was a practicing member of the Methodist church, but at the same time obeyed many of the religious rules of his clan. That same father was a convinced citizen of the world, whilst fighting for the independence of Ghana.

Identities can help us to meet the other

According to Appiah, our focus should not be on values but on understanding the other, “walking in his moccasins”, really meeting . He quotes Allport, whose research shows that just going to the same school or even living in the same neighborhood will not help. Children from different backgrounds need to work together on projects, discuss and explain to each other where they come from. But they will only listen to each other if they first search for a common identity. Be it love for football, French fries or philosophy, once two people have made contact through a common identity, it will be much easier to accept differences, to open up to the other’s perspective, to allow the other’s perspective to broaden their own.

Conclusion

So let’s stop worrying about article 23 causing segregation. It doesn’t, and Islamic schools are not the cause of segregation either. Let’s learn from Appiah, focus on common identities, and start organising more real meetings between people (especially school children) from different backgrounds, who normally would not interact. Perhaps schools can start forming partnerships with schools on the other side of the city and mixing kids on subjects like citizenship. After all, citizenship is something one can only learn by doing.

Next Step

How to sustain a peaceful society whilst the population is growing more and more pluriform is a fascinating subject. My next step will be to research this subject in more depth, not only in its legal and philosophical aspects, but also at a practical level. Appiah’s suggestion – based on research by Allport – has ignited a spark of interest in me. Not only to research further the issues of shared values and identities, and see if it could be combined with Wittgensteins theory of the overlapping mesh of features and family resemblance, but also to try and find a pragmatic and realistic solution to the challenge of segregation, not only in theory but also in practice. My aim is to capture the results in a dissertation. 

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Interdisciplinary Study of the Law, Public Law, 2017-02-16T08:07:00+00:00
How to get out of the CETA mess - wsifranchise.info http://wsifranchise.info/articles/how-to-get-out-of-the-ceta-mess http://wsifranchise.info/articles/how-to-get-out-of-the-ceta-mess#When:15:41:00Z In the ‘Trading Together Declaration’, over 60 academics call for a different approach to international trade, with more effective democratic control.]]>

Earlier this week the INTA Committee of the European Parliament voted in favour of CETA; the full House will vote on the deal in February. But everyone knows that this process has not been smooth sailing. The actions of the Walloon Parliament, which led to last-minute delays and additional complications in the signature of the EU-Canada agreement (CETA) in October 2016, are an example of a backlash: national governments, as well as national and regional parliaments, have staked claims to become more involved in international negotiations of the European Union (EU). The recent Namur Declaration, signed by 40 academics, implies that this messy process actually sets a good example for the future. This is most regrettable.

Promoting unanimity amongst 30-plus parliaments is a significant step backwards, and weakens the EU at a time when it needs to be strong. It allows a particular local interest to hold the interests of all other EU citizens hostage even in areas where EU Member States have decided to act collectively. A major problem with the Namur declaration is its complete silence on the reasons for the EU’s exclusive competence over international trade policy, coupled with the EU’s system of qualified majority voting.

Of course, even when the EU has exclusive competence, most of what is done in ‘Brussels’ is actually decided by the Member States. Therefore, national parliaments should hold their national governments much more to account for the positions they take in the EU Council of Ministers. In addition, the European Parliament exercises control over the Council. It is unfortunate that the present system of democratic control at multiple levels in the EU is being threatened by tendencies to renationalise EU policies.

Like the European Parliament, national parliaments should be involved throughout the international negotiations of the EU, albeit with a different emphasis. National parliaments should influence the positions taken by their national ministers in these negotiations. Unfortunately, national parliaments do not always seize the opportunities they do have. For example, Wallonia’s Parliament was told by several experts in a public hearing in February 2016 that there was little they could do after the European Commission received a mandate to open negotiations with a third country. This is quite mistaken. There is a lot that happens after the mandate, and on which not only the Commission but also the Member State governments must and do reflect. Just compare the mandate which the Commission received on the TTIP negotiations with the debate that started not long afterwards. 

The Walloon Parliament was also told that, in theory, one could envisage national or regional parliaments being informed regularly about the progress of negotiations. But this would be too burdensome in practice. How regrettable it is that these experts, as well as the national and regional parliaments they advise, do not engage in benchmarking. If they were to look elsewhere, to begin with at the working procedures set up by the European Parliament with the Commission, they would see what is possible: being “fully and immediately” informed about the negotiations, and expecting their government to take “due account” of their parliament’s comments.

Of course, national governments should be transparent, and communicate all the information they receive from the Commission about the negotiations to their national and, as the case may be, regional parliaments. This is not standard practice either unfortunately. A telling example occurred last year. The French Assemblée complained it did not receive enough information about the TTIP negotiations. Upon investigation, it turned out that the French government had failed to transmit the information it had received from the Commission to the Assemblée!  

Over 60 academics, from more than 15 European countries, are now calling for a different approach in the ‘Trading Together Declaration'. They advocate a Europe that works, that is less complex, with more effective democratic control, and better access for its citizens. To this end, they have developed several proposals. For more information see the web site: http://www.trading-together-declaration.org

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Public Law, 2017-01-26T15:41:00+00:00
A generation of invisible children - wsifranchise.info http://wsifranchise.info/articles/a-generation-of-invisible-children http://wsifranchise.info/articles/a-generation-of-invisible-children#When:13:27:00Z Statelessness is a crucial issue nowadays and not just in the context of the refugee crisis. Children are particularly affected by the negative consequences of the deprivation of nationality. How can states take action to improve this situation?]]>

Each of us usually has a nationality and as we grow up we do not normally pay any attention to this state of affairs. It is an intrinsic characteristic of a person, like their name or the colour of their eyes. Even if we consider that statelessness might be an issue, we usually think it will be a random, individual and apparently largely isolated case, perhaps related to the refugee crisis – as we know millions of people have been forcefully internally displaced or have become refugees.

In order to put this into perspective, pursuant to a report issued by the Human Rights Council in December 2015, around 10 million people worldwide are stateless. Among them, over one third are children. Every ten minutes, a child is born stateless and every year, more than 70,000 children in the world are born into statelessness.

According to international law, in particular Article 1 of the 1954 Convention relating to the Status of Stateless Persons, the term “stateless person” means an individual who is not considered a national by any state under the operation of its law. International human rights law guarantees the right of every child to acquire a nationality and the prohibition of arbitrary deprivation of nationality. The right of everyone to a nationality is enshrined in Article 15 of the Universal Declaration of Human Rights and is recognised in many other international and regional human rights instruments. In particular, the Convention on the Rights of the Child provides that children should be registered immediately after birth and have the right from birth to acquire a nationality. While states may exercise discretion in determining the rules of access to nationality, such rules must comply with the principles of international human rights law, in particular the best interests of the child and non-discrimination.

When they are not granted a nationality and the relevant identification documents, children are subject not only to a violation of the right to nationality but also to violations of other fundamental human rights. Indeed, with the exception of certain specific rights, such as the right to vote, entitlement to human rights is not based on the nationality of the individual but rather on his or her human dignity. In practice, however, those without a nationality have seen their enjoyment of various human rights negatively affected. The right to identity for instance, being so closely related to the right to a nationality, is impaired by the arbitrary deprivation of nationality and such deprivation also undermines a child’s right to juridical personality and to a name.

Discrimination in access to healthcare is prohibited under the International Covenant on Economic, Social and Cultural Rights. Despite this prohibition, stateless children face discrimination in the enjoyment of the right to health, usually due to lack of documentation, as medical facilities often require documents attesting nationality in order to treat a child, including vaccination.

Although statelessness and non-citizenship should have no bearing on the enjoyment of the right to education, they surely constitute another impediment to children’s access to school, consequently limiting their job opportunities as they become adults. Such limitations often lead to a higher exposure to exploitative and hazardous work.

Other obstacles, such as travel restrictions and higher medical costs for non-nationals, also jeopardise children’s right to health. The deprivation of nationality and/or statelessness negatively impacts on children’s right to private and family life, to an adequate standard of living and to freedom of movement, as it limits their opportunities to enter or reside in the territory of a state. Last, but not least, the arbitrary deprivation of nationality heightens children’s vulnerability to human trafficking, military recruitment and sexual exploitation. In the context of migration or forced displacement, stateless children are more vulnerable to arbitrary and lengthy immigration detention, which in addition to constituting cruel, inhuman or degrading treatment, may undermine their psychological and physical well-being and compromise their cognitive development.

In view of the above, if so many rights are endangered by the arbitrary deprivation of nationality, what can be done to limit the negative effects of statelessness and progressively reduce the number of stateless children?

Many NGOs around the globe, as well as international organisations are working to end statelessness. Two years ago, the United Nations High Commissioner for Refugees (UNHCR) launched the #IBelong campaign, with the purpose ofdrawing attention to  statelessness and encouraging states to end this legal limbo. Yes, states once again are the major agents of change in this regard. They can prevent childhood statelessness by closing the gaps between international law and domestic legislation and by effectively implementing substantive and procedural safeguards in their nationality laws.  States must ensure that effective and appropriate remedies are available, including the reinstatement of nationality. As required by Target 16.9 of the United Nations Sustainable Development Goals, states should ensure universal free birth registration and guarantee that the birth of every child on their national territory is registered immediately, especially if those children would otherwise be without nationality.

Let’s end statelessness. Let’s end the invisibility of future generations.

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Public Law, 2016-11-17T13:27:00+00:00
UK Parliament must give consent to Brexit, but is a constitutional crisis developing? - wsifranchise.info http://wsifranchise.info/articles/uk-parliament-must-give-consent-to-brexit-constitutional-crisis-developing http://wsifranchise.info/articles/uk-parliament-must-give-consent-to-brexit-constitutional-crisis-developing#When:12:49:00Z High Court rules that UK Government cannot invoke Article 50 TEU through prerogative powers, and must gain approval of Parliament before beginning formal process of exiting the EU.]]>

On Thursday 3rd November 2016 the High Court of England & Wales decided the eagerly awaited and politically sensitive case of Miller & Dos Santos v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The case centred around the ability of the Government to invoke Article 50 TEU, thereby starting the formal procedure to exit the European Union, without obtaining consent from Parliament. The Government considers that it can do this using the ‘Royal Prerogative’ – residual customary powers reserved for the ‘Crown’.  Originally used to separate the powers of the monarch from Parliament, this can today be understood as executive powers still retained for use by the UK Government.

The Government’s argument centred on the claim that withdrawing from international treaties such as those of the EU is part of the role of ‘making and unmaking’ international agreements reserved for the Government through royal prerogative powers. As such, they argued, if Parliament had intended to relieve the executive of the power to begin the process of Brexit, it would have made this explicitly clear in either the European Communities Act (ECA 1972) - the original statute giving domestic effect to law originating from the EU – or more recently in the European Union Act 2011 (which required a popular referendum in case of further EU Treaty reform), or indeed the European Union Referendum Act 2015 itself.

The Government also claimed that rights derived from EU law should not be considered the same as domestic law, as Section 2(1) ECA merely refers to the EU Treaties, which themselves lay down the actual substantive content of these rights. Therefore, Parliament never intended to give domestic effect to these rights unconditionally, but that this would always be subject to the UK’s continued membership of the European Union, which fell within the Government’s prerogative powers. By contrast, the Claimants’ argument was that royal prerogative powers cannot be used to “diminish or abrogate” rights under the law of the United Kingdom. Given the nature of the ECA 1972 and the effect that rights deriving from the EU have in domestic law, this would equate to domestic rights being lost as a result of using prerogative powers. According to the applicants, this violates long standing principles of UK constitutional law.

In its decision, the Court first explains that there was common ground between the parties. Both parties considered that once Article 50(2) TEU is invoked, the process of exiting the EU cannot be reversed. Although only briefly mentioned in the judgment, this crucial assumption goes on to significantly affect the Court’s reasoning, as it means that invoking Article 50 TEU would have the same legal effect as formally exiting the EU. The Court then goes on to systematically dismantle the Government’s entire argument. Most pertinently, the Court criticised the Government’s suggestion that just because Parliament did not explicitly legislate to acquire the power invoked in Article 50 TEU, this meant that the Government should retain it. The Government’s use of methods of statutory interpretation completely ignores, the Court asserts, the case-law on constitutional principles. This presumes that Parliament intends to legislate in conformity with constitutional principles (i.e. prerogative powers not being used to remove individual rights), and not against them unless explicitly mentioned. Decisions such as R (Factortame Ltd) v Secretary of State for Transport and Thoburn v Sunderland City Council demonstrate that Parliament intended the ECA 1972 to produce “profound effects”, including importantly the primacy of EU law over domestic law. This means that the ECA 1972 cannot be implicitly repealed through the enactment of subsequent inconsistent legislation. The Court considered the failure of the Government to even mention this line of case-law meant their arguments were “flawed at this basic level”.

The Court agreed with the Claimants that at stake was the fundamental constitutional principle that the Government has “no power to alter the law of the land by use of its prerogative powers”. According to the Court, Section 2(1) of the ECA 1972 means “all directly applicable EU law is made part of United Kingdom law and is enforceable as such”. In enacting the ECA 1972, “Parliament intended rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the (Government) in exercise of its prerogative powers”. During the proceedings, the parties were in agreement over the three categories of rights that the ECA 1972 conferred upon British nationals: (i) rights capable of replication by Parliament (e.g. worker rights enshrined in the Working Time Directive); (ii) rights enjoyed in other EU Member States (e.g. rights connected to the free movement of persons); and finally (iii) rights which cannot be replicated in UK law (e.g. the right to vote and stand for election in European Parliamentary elections).

The Court considered that, if after two years of invoking Article 50 TEU the UK would automatically leave the EU - and therefore legally the same as formally leaving – at least some of these rights would cease to exist within the national legal order. The judges actually seemed perplexed by the Government’s repeated insistence that domestic law would indeed be affected by invoking Article 50 TEU – after all, this meant the Government was implicitly agreeing that constitutional principles relating to prerogative powers would be violated. The Court also emphasised that prerogative powers can be used “solely on the international plane”. However, this necessarily means that it can only be used when it has no effect in domestic law. Using the case of R v Secretary of State for Foreign & Commonwealth Affairs, ex parte Rees-Mogg [1994] QB 552 as an example (which was heavily relied upon by the Government), in which the UK was permitted to use prerogative powers to sign up to the Protocol on Social Policy - an international agreement linked to but not part of the Treaty of Maastricht - precisely because to do so would not “..be altering or affecting the content of domestic law without parliamentary approval”. If one agrees that Article 50 TEU is irrevocable and thus invoking it will inevitably result in individuals losing rights, the Court’s reasoning becomes very persuasive. As the Court emphasised in strong terms, the principle of Parliamentary Sovereignty is the “most fundamental rule” of the UK’s unwritten constitution. As A.V. Dicey famously wrote, “only Parliament can ever have the authority to override or set-aside legislation enacted by Parliament”. In contrast, the Court considers prerogative powers to be (quoting Lord Reid) “…a relic of a past age, not lost by disuse, but only available for a case not covered by the statute”.

The decision has been incorrectly and dangerously labelled as a kind of establishment ‘stitch-up’ by the tabloid press, with claims that ‘unelected judges’ were blocking Brexit and are therefore “enemies of the people”. The case, however, made no comment of the merits of a potential Brexit, merely asserting a long-standing principle that only Parliament can ever have the power to remove directly effective rights from individuals. In this respect, a bill legislating for an EU referendum that does not provide for the explicit repeal of the ECA 1972 can only ever be advisory, as Parliament must make the final decision. It does seem rather curious that so many of those that claimed to be such staunch advocates of parliamentary sovereignty during the run-up to the referendum should suddenly disagree with it if they personally do not like the way it functions. 

However, the above is not to say that there is universal agreement on the irrevocability of Article 50. The provision itself merely states that “the Treaties shall cease to apply … two years after the notification” unless the UK and EU unanimously agree to “extend this period”. As the ultimate interpreter of EU law is the Court of Justice of the EU, the Government would be in the ironic position of hoping the Supreme Court references a question to the CJEU to ask if Article 50 is revocable. If it is found to be, merely invoking Article 50 would not by itself result in individuals losing rights and an act of parliament would only be necessary to formally exit. Recently, it has been suggested that the Government will change its line of reasoning at the appeal along these lines, meaning the point could be considered by the Supreme Court. However, unless the Government demonstrates that the UK can unilaterally reverse the Brexit process, legally speaking it may well still be the case that individuals could potentially lose rights as a result of the Government exercising prerogative powers.

The possible irrevocability of Article 50 also has significant consequences for Parliament. Many MPs have already indicated that, whilst they may object to various aspects of the negotiated exit agreement, they will not in principle vote against invoking Article 50 TEU. However, if the process is indeed irreversible, this would result in MPs voting away any real power they would have to influence the exit process! The Government would know that at the end of the negotiations, Parliament would have two options: either agree to the Government’s negotiated deal, or face a sudden complete split from the EU, with no trade relations whatsoever, and all the economic consequences that would arise from this. This paradox, however, has not stopped some political parties from calling for a referendum on the terms negotiated in the exit agreement.

MPs may therefore find themselves in the unenviable position of having to decide whether to implement the ‘will of the people’ and invoke Article 50, even if this is against what they consider to be in the national interest. However, if they vote for what they believe is in the national interest, they face the political danger of ignoring the mandate arising from the referendum. Ultimately, it may be that MPs have to take a ‘leap of faith’ by agreeing to invoke Article 50, but ensuring that the Government commits to preserving certain aspects of the UK’s close ties with the EU, for example ensuring membership of the customs union, or maintaining the legal position of Europeans in the UK after Brexit. It would seem that even if the Court dismisses the Government’s appeal, the constitutional repercussions of Brexit on British politics and society are far from over.

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Public Law, 2016-11-14T12:49:00+00:00
CETA versus European status quo - Part I: Barriers to regulation - wsifranchise.info http://wsifranchise.info/articles/ceta-versus-european-status-quo-part-i-barriers-to-regulation http://wsifranchise.info/articles/ceta-versus-european-status-quo-part-i-barriers-to-regulation#When:11:13:00Z Opponents of CETA argue that it limits the ability of states to regulate important subjects like consumer health. However, the EU has always limited this to some extent. Does CETA limit the freedom to regulate even more?]]>

Recently, TTIP’s “little brother” CETA has claimed its share of the spotlight. The Walloon refusal to accept the trade agreement with Canada has been a major news story, since without the Walloon approval the deal could not be signed by Belgium, and without Belgium the deal could not be signed by the entire EU. After agreeing on a four-page declaration to remedy the Walloon concerns all parties, including Belgium, were able to sign CETA.

This does not mean that CETA is now in safe waters. After the Dutch “no” in a referendum against the Ukraine-EU Association Agreement, the opposition of the Walloons has encouraged those opposed to CETA in their efforts to organize another referendum in the Netherlands.  Moreover, an inadmissible attempt to launch a European Citizens Initiative against CETA and TTIP has attracted 3.5 million signatures.

Besides complaints about the secrecy of the negotiations surrounding treaties like TTIP and CETA, most opponents’ objections can be divided into three subjects: 1. CETA prohibits the protection of public interest in areas such as the environment, health or labour standards by requiring liberalisation. 2. CETA allows companies to unjustly sue for exorbitant amounts of money which costs taxpayers and limits the potential to regulate 3. Regulatory cooperation between the EU and Canada allows companies to influence legislation.

These issues are not new for the EU. The internal market has limited the ability to set standards that unjustifiably harm trade for decades, companies are able to sue Member States for damages for violating EU law and multinationals already try to influence EU legislation on a daily basis. Asking whether CETA would lead to the introduction of these issues is therefore not the right question. Rather, the question should be whether CETA would significantly worsen these issues. In three blog posts I will try to answer this question. In this first blog I will examine whether CETA will introduce additional obstacles for regulating public interests beyond the restrictions under EU law.

CETA and trade barriers

Most rules in CETA with regard to trade liberalisation and trade barriers are specific and technical. For instance, article 20.19 prohibits Canadian dairy farms from selling their own cheese as Gouda, Feta or Gorgonzola. There is no rule of mutual recognition in CETA with regard to goods. Canadian hair dryers, Canadian maple syrup and Canadian cars will have to fully comply with the standards of EU Member States. This contrasts with the current limitations on the rights to regulate goods from other EU countries. If the Netherlands were to reject Swedish hair dryers, it  would need to show why they believe Swedish hair dryers to be unsafe. Under CETA, a Canadian hair dryer that does not live up to the Dutch standards can be rejected without a need for justification.

However, the main source of fear has been the open-ended clause which requires the EU and Canada to grant investors ‘fair and equitable treatment’. In contrast to the more technical and detailed chapters of CETA, a breach of this clause can entitle investors to claim damages directly under CETA’s Investment Court System. Article 8.10 provides a closed list of examples of violations of this clause. Most relevant to general regulation are the prohibition of manifest arbitrariness and the protection of legitimate expectations.

One could fear that a Canadian producer of maple syrup might claim that warnings against sugar in syrup are arbitrarily restrictive if insufficient evidence is available to prove the effectiveness of this campaign. However, under EU law Member States are not only obliged to abstain from limiting trade by arbitrary regulation; they must also justify that such regulation is warranted by a legitimate goal, it is suitable for achieving that goal and that it is the least restrictive way of achieving that goal. For instance, Germany is prohibited from banning additives like maize and rice from beer, since the public can just as well be alerted to the existence of these additives with a label. If a Canadian firm is  trading on the European market, it can also invoke the EU provisions against unjustified trade barriers on the same basis as it would be able to invoke any other national legal provision. Concretely, this means that a Canadian maple syrup producer would be able to challenge sugar warnings on the basis of EU law, and have a significantly stronger case in doing so compared to challenging the same warnings under CETA.

The concept of legitimate expectations can also seem daunting. The Canadian firm Hudson Bay decided to invest in Dutch real estate and might expect that Dutch labour laws will not change to its detriment. Does that therefore mean that the Netherlands loses the ability to alter those laws? According to subsection 4 of article 8.10 this protection only applies when a specific representation of facts was given to an investor to induce investment, upon which the investor relied in his choice to invest, which was then frustrated by the State Party. The fact that the simple loss of profit due to a change in regulation is excluded is reaffirmed in article 8.9. This clause is therefore not a limit to regulatory competence, but a prohibition of attracting investors by presenting false securities. As long as the Dutch authorities do not explicitly promise a standstill of their regulations, Hudson Bay is therefore not be able to limit the content of Dutch labour laws.

For the purposes of this argument it does not matter if you believe EU law holds the regulation of our economy up to high standards or that EU rules violate the sovereign right of states to protect their citizens from all perceived harms in any way they see fit. Regardless of your opinion on that subject, the constraints EU law places on national regulation are more comprehensive compared to those in CETA. The constraints that CETA places on the regulatory competence of EU Member States are therefore largely redundant. 

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Public Law, 2016-11-08T11:13:00+00:00