Since our autumn 2022 newsletter, there have been significant developments in public international law.
From climate change treaties and the unravelling of energy treaties to national and international jurisprudence clarifying immunities and international boundaries, Volterra Fietta has been actively engaged in many of these developments. In recognition of our work, Volterra Fietta was yet again ranked Tier 1 and Band 1 in public international law by Legal 500 and Chambers and Partners respectively. In addition, Robert Volterra was “promoted” by Chambers and Partners to an inaugural “Star Individual” category for public international law. We are thankful for the continued trust of our clients around the world. Further details are available here.
Another recent update is that Volterra Fietta promoted senior associate Angela Ha to counsel, effective as of 1 November 2022.
Recent developments in international law
On 3 November 2022, five US Republican senators sent a letter to 51 US BigLaw firms about the antitrust implications of Environmental, Social and Governance (“ESG”) initiatives. The Republican senators stated that law firms “ha[ve] a duty to fully inform clients of the risks they incur by participating in climate cartels and other ill-advised ESG schemes” and that there is no ESG exemption to antitrust laws. They warned that the US Congress will refer these violations to the Federal Trade Commission and the Department of Justice (the enforcers of antitrust laws in the US). It is important to note that these are simply the positions taken by a small minority of politically interested politicians.
On 18 November 2022, the UK Court of Appeal decided that diplomatic immunity enshrined in the Vienna Convention on Diplomatic Relations of 1961 (“VCDR”) and UK legislation did not conflict with human rights (London Borough of Barnet v AG (A Child) & Secretary of State for Foreign, Commonwealth and Development Affairs [2022] EWCA Civ 1505). A local authority had suspended its investigation into a family after it transpired that the father was an accredited diplomat. One of the children appealed to the Court of Appeal, claiming that Article 3 of the European Convention of Human Rights (“ECHR”) required States to take effective measures to prevent private acts of torture, inhuman or degrading treatment and that this duty conflicted with diplomatic immunity. The Court, noting that the VCDR encapsulates long-established principles of customary international law, decided that neither Article 3 nor the ECHR intended to change those long-established principles. This judgment is yet another in a long line of case law confirming compatibility between immunities and human rights (although there are notable exceptions as visible from another international law development further down below). However, the Court left open the possibility of conflict between immunities and human rights if the European Court of Human Rights decided that was the case.
On 22 November 2022, the United Nations Climate Change Conference (COP 27) closed with an agreement to provide loss and damage funding to States affected by climate disasters. The funding will cover the negative consequences that arise from unavoidable risks of climate change, such as rising sea levels, prolonged heatwaves and life-threatening events. The agreement also (a) established a transitional committee tasked with making recommendations to COP 28 in 2023 to operationalise the fund, including practical recommendations on the governance of the fund; and (b) invited inputs of the parties and relevant organisations on these operational matters. About 55 vulnerable countries estimated that their combined climate-linked losses over the last two decades amounted to USD 525 billion.
On 24 November 2022, the European Parliament voted on a resolution that called for the European Union (“EU“) to exit the Energy Charter Treaty (“ECT”) and rejected a proposal that aimed to modernise the ECT to, among other things, limit investor protection (as detailed in Volterra Fietta’s previous client alert). The European Parliament noted that the ECT proposal maintains protection for existing fossil fuel investments for at least 10 years from the entry into force of the modernised ECT and, therefore, called on the European Commission and EU Member States to initiate the process toward a coordinated exit of the EU from the ECT. In February 2023, the European Commission recommended that EU Member States withdraw from the “unmodernised” ECT, as it is not in line with the EU’s policy on investment protection.
On 24 November 2022, the 117th Executive Council of the United Nations World Tourism Organization elected the Kingdom of Saudi Arabia as its chair for 2023. The election demonstrates the continuing leadership of the Kingdom of Saudi Arabia in a broad variety of matters of utmost international importance. Robert Volterra and Gunjan Sharma attended the 117th Executive Council session as legal advisers to the Kingdom of Saudi Arabia’s delegation.
On 29 November 2022, the UK Parliament’s Joint Committee on Human Rights recommended the passing of a draft order designed to remedy an incompatibility of the UK’s State Immunity 1978 (“SIA”) with human rights (as detailed in Volterra Fietta’s client alert). In Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah [2017] UKSC 62, the UK Supreme Court decided that the SIA in its current form grants States greater immunity than what is required under customary international law. Given that the SIA also limits access to courts in a discriminatory fashion, the Court found that the SIA breaches Articles 6 and 14 of the ECHR. The State Immunity Act 1978 (Remedial) Order 2023 aims to align the SIA with customary international law. It limits immunity in employment cases brought by employees of embassies and diplomats to situations in which the employment is a “sovereign act”. The changes to the SIA come into force on 23 February 2023 with effect from the UK Supreme Court’s 2017 judgment.
On 1 December 2022, the International Court of Justice (“ICJ”) handed down a judgment in a water-sharing dispute between Chile and Bolivia in the Dispute over the Status and Use of the Waters of the Silala (Chile v Bolivia). Chile asked the ICJ to declare that the Silala waters are an “international watercourse” subject to customary international law rights and obligations. Bolivia initially counter-claimed, among other things, that parts of the waters are “artificially enhanced” and therefore customary international law did not apply or did not apply to the extent claimed by Chile. The parties’ positions evolved during the proceedings. As such, the ICJ unanimously decided that all but one of the parties’ claims were, by the time of the ICJ’s judgment, no longer in dispute or purely hypothetical. The ICJ also decided that Bolivia did not breach customary international law obligations of notifying and consulting Chile about planned measures that pose a risk of significant transboundary harm, because Chile did not raise a risk of such harm. Instead, the ICJ invited the parties to consult and co-operate. Following the judgment, and given the parties have not yet reached an agreement on sharing the Silala waters, the situation between Chile and Bolivia remains unsettled. The judgment serves as a lesson for litigants before the ICJ to consider carefully how to frame their claims and to provide sufficient evidence to the ICJ on the existence of a dispute.
On 6 December 2022, the UK Court of Appeal decided that the former King of Spain was entitled to functional immunity over acts alleged to have occurred when he was King of Spain (His Majesty Juan Carlos Alfonso Victor María de Borbón y Borbón v Corinna Zu Sayn-Wittgenstein-Sayn [2022] EWCA Civ 1595). The Court found that the lower court erroneously applied the test on functional immunity under the SIA. The proper approach was to consider the individual acts alleged and decide whether they were taken under a colour of authority. The former King of Spain had functional immunity in relation to acts for which he required the services of State officials. The Court also agreed with the lower court that the claimant could not rely on a personal injury exception to immunity, because she did not plead such personal injury in her claim.
Recent firm events
On 16 September 2022, Robert Volterra spoke about public international law and State interventions during the Vilnius Arbitration Day 2022 hosted by the Vilnius Court of Commercial Arbitration.
On 16 September 2022, Gunjan Sharma spoke about the origins of the United Nations Guiding Principles on Business and Human Rights at the World Law Forum: ESG in Developing Economies.
On 28 September 2022, Angela Ha spoke about the Southern Bluefin Tuna award and its contributions to the settlement of international disputes at the International Seabed Authority’s Women in the Law of the Sea Conference, held at the United Nations Headquarters in New York.
On 27 October 2022, Robert Volterra spoke about global health reform and State responsibility at the 51st Annual Conference of the Canadian Council on International Law.
On 3 and 4 November 2022, Gunjan Sharma spoke at the 4th Annual India Disputes Conference on mitigating investment dispute risks when investing in India.
On 25 November 2022, Graham Coop was a keynote speaker at the Serbian Energy Law Association Conference 2022 held at the Serbian Chamber of Commerce and Industry in Belgrade. The topic of his presentation was “The modernised Energy Charter Treaty: Is the better the enemy of the good?”.
On 7 December 2022, Graham Coop spoke at the 46th session of the International Energy Charter Industry Advisory Panel in Brussels, Belgium, on the perspectives of the modernised Energy Charter Treaty.
On 12 and 13 December 2022, Volterra Fietta and Kings College London hosted the fifth London International Boundary Conference, the first since the COVID-19 pandemic. Robert Volterra, Gunjan Sharma and Angela Ha spoke at the conference. For further information, please visit the conference’s website.
On 18 January 2023, Robert Volterra spoke about public international law matters before the English courts at the McNair International Annual Legal Review of 2022.
In the coming months, Volterra Fietta plans to offer seminars on the following topics:
- Quantum and compensation in investment treaty arbitration: Recent developments
- The international law implications of Vision 2030
- Priorities and challenges at the ITU’s 2023 WRC
- Deep Seabed Mining licensing and regulation: Recent developments at the ISA
- Initiating a case before the ICJ
If you would like to be added to Volterra Fietta’s invitation list for future events, please email your name and affiliation to info@volterrafietta.com.
