Duke University-Geneva Conference on Comparative Foreign Relations Law: Courts, Treaties, Custom and the Use of Force. July 10-11, 2015, Université de Genève. In July 2015, as part of its summer Institute in Transnational Law, Duke Law School will be hosting a conference on the topic of “comparative foreign relations law.” The conference, which will be held at the University of Geneva, will consider similarities and differences in how nations (and the European Union as an entity) handle various issues of foreign relations law, including the incorporation of international law, the process for concluding international agreements, the accommodation of federalism and other structural values, and the decision to use military force. Scholars from various countries will present short papers outlining how these issues are addressed in their countries or in the EU, and scholars from the United States will draw comparisons to U.S. practice. A number of the U.S. participants are Reporters for the American Law Institute’s current Restatement (Fourth) project on Foreign Relations Law, and this conference will provide a useful opportunity for them to gain comparative perspectives on the issues they are considering. For more details and registration, see here.
The Kampala Amendments to the Statute of the International Criminal Court (ICC) adopted in June 2010 define the crime of aggression for the purposes of the ICC Statute and set out the conditions under which the ICC will exercise jurisdiction with respect to that crime. It was decided in Kampala that the aggression amendments will only become operational, in the sense that the ICC can only exercise jurisdiction over the crime of aggression: (i) one year after the aggression amendments have come into force for at least 30 States and (ii) if the ICC Assembly of State Parties adopts a further decision to activate that jurisdiction, with 1 January 2017 being the earliest date for the adoption of that decision [Arts. 15 bis (2) & (3) & 15ter (2) & (3), ICC Statute]. Given that 23 states have now ratified or accepted the aggression amendments and that 1 January 2017 is under 18 months away, the activation of the ICC’s jurisdiction over the crime of aggression is not very far away at all [see this report on action by other states considering ratification]. As that moment – when the ICC is able to exercise jurisdiction over aggression approaches – attention will turn (back) to a couple of issues that remain unresolved with respect to the interpretation of the Kampala amendments. One of those issues is whether the Court will be entitled to exercise jurisdiction over the nationals of a party to the Rome Statute which has not accepted the aggression amendments but which is alleged to have committed aggression on the territory of a state party that has ratified or accepted those amendments (see previous discussion here & here). The second issue is the interpretation to be given to the definition of the crime of aggression under the Kampala amendments.
Article 8 bis(1), of the ICC Statute provides that: “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
The relationship between the concept of the “crime of aggression” and of “act of aggression” under the ICC Statute and under general international law respectively remains unclear. Under the Kampala amendment only an “act of aggression” which by “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” can amount to the “crime of aggression” attracting individual criminal responsibility. Despite attempts in interpretive Understandings adopted in Kampala to give guidance with respect to the definition of the crime, the ICC will have its work cut out in establishing what amounts to a manifest violation of the UN Charter such that it should be regarded as the crime of aggression.
As the concept of aggression is one which relates not merely to individual criminal responsibility but builds on state responsibility for unlawful uses of force, it is instructive to examine how the International Court of Justice (ICJ) has dealt with the concept of aggression. Read the rest of this entry…
Speaking of occupied territories, an interesting judgment should soon come from the General Court of the European Union (GC) in Action for Annulment Frente Polisario v Council (Case T-180/14), a case with fascinating international law aspects. I attended the hearing last week and think it warrants a report.
Frente Polisario is a national liberation movement (NLM) that claims sovereignty for Western Sahara – the area between Morocco and Mauritania that has been on the UN list of non-self-governing territories since 1963, and in 1975 was the subject of a fairly inconclusive ICJ Opinion. The Frente sees Morocco as an occupying power, and challenges the EU Council decision implementing the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. Given that the 2010 Agreement is a development of the 2000 EU-Morocco Association Agreement, the decision will have significant implications for the application of the latter agreement, and may thwart negotiations of the so-called “Deep and Comprehensive Free Trade Agreement”.
These agreements are all silent on the question of what constitutes Moroccan territory. However, Frente Polisario claims, de facto Morocco has been applying the 2000 Association Agreement to Western Sahara. If applied the same way, the 2010 Agreement will facilitate the export to the EU of agricultural products grown in Sahrawi land and fish caught in Sahrawi waters. If Morocco’s control of Western Sahara is illegitimate, this would violate the right of the Sahrawi people to self-determination and to permanent sovereignty over their natural resources.
The case raises a number of interesting questions:
Standing of NLMs
As readers have pointed out, the Grand Chamber in Lambert has now rectified its error, by amending paragraph 138 so that it now says in respect of Glass that: ‘in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention’. The excellent blog post by Grégor Puppinck on Lambert nonetheless raises the broader question of the inherent power of international courts and tribunals to reopen their judgments.
All international courts and tribunals have the inherent power, in certain circumstances, to reopen their judgments. It has always been recognized that, as the report of the Advisory Committee of Jurists drafting the Statute of the Permanent Court of Justice, put the matter, although the principle of res judicata is underpinned by the fundamental value that ‘for the sake of international peace [a matter decided] should be considered as finally settled’, ‘[j]ustice, however, has certain legitimate requirements’ (Procès-Verbaux of the Proceedings of the Committee (Van Langenhuysen Brothers 1920) 744).
Man’s justice is not perfect, not even that of the European Court of Human Rights (ECHR). In a striking turn of events, it appears that the Court made a manifest legal error in the well known Lambert judgment (Lambert and others v. France, n°46043/14, Grand Chamber, 5 June 2014) by wrongly referring to its own case-law. In the Lambert case, that Court ruled that the French authorities could stop the artificial hydration and nutrition of Mr Lambert.
Glass v. United Kingdom judgment (n° 61827/00, Fourth Section, 9 March 2004) is one of the most important decisions the Court refers to in Lambert to support its decision. Indeed, the Court quotes Glass five times. In Glass, similarly to in Lambert, the mother of a child hospitalized for respiratory disorders complained about the the medical team’s decision to administer to her minor son, against her will, a high dose of morphine that risked causing his death. The doctors elected to not resuscitate him in the event of a respiratory crisis. Wishing to defend her son’s life, the patient’s mother brought her case to the ECtHR, as in the Lambert case.
In Glass, the Court ruled that: “the decision of the authorities to override the second applicant’s objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8 of the Convention.” It “unanimously [held] that there [had] been a violation of Article 8 of the Convention.” Under this precedent, doctors should either respect the will of a patient’s parent or obtain an injunction against the parent’s decision. This precedent supports the position of Lambert’s parents. However, in the Lambert judgment the Grand Chamber stated erroneously that, in the Glass judgment, the Court “held that there had been no violation of Article 8 of the Convention.” (Paragraph 138). This error is found in the “general considerations” presenting the case law and supporting the Court’s decision. It is impossible to accurately determine the implications of this error on the Court’s reasoning, but it allows the Grand Chamber to affirm, in support of its own conclusion, that “it did not find a violation of the Convention in any of these cases.” (Paragraph 139). Read the rest of this entry…
Announcements: Conference in Honor of Nicolas Michel (Geneva); Conference on UN at 70 (London); CfP on Law and Jurisprudence
1. Colloque Nicolas Michel, Geneva, 29 June 2015. On 29 June a one-day conference will be organized in Geneva in honor of Mr. Nicolas Michel, former UN Under Secretary-general for Legal affairs and presently Professor at the Geneva Law Faculty and at the Graduate Institute of International and Development Studies. Four sessions will address the following topics: UN-law; Responsibility to protect; Right to culture; International Criminal Justice. Reports by Dr. S. Villalpando, Prof. A. Peters, Dr P. Meyer-Bisch and Prof. C. Stahn will be followed by a discussion among renowned panelists and then by a general discussion. The conference will be held in French and English. Further information is here.
2. The International Law Programme at Chatham House will be hosting a Conference on ‘United Nations at 70: International Law and the Achievement of UN Aims’ on Friday 16 October 2016 at the Foreign and Commonwealth Office. The Conference is being held in partnership with the UN Office of Legal Affairs. For further details and to enquire about registering see here.
3. Call for Submissions, Volume 5, Issue 1 (March 2016). The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the first issue of 2016. The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 16th October 2015. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website.
This is Part II of a two-part post. See Part I here.
Suspension of membership
A second category of FIFA membership issues related to international law relates to possible suspension of membership. Under Art. 14 FIFA Statute, it is the FIFA Congress that is responsible for suspending a member association, such suspension requiring a three-quarter majority of the Members present and eligible to vote. In case of a positive vote on such suspension, other FIFA member associations may for the duration of the suspension no longer entertain sporting contacts with the suspended member.
Although not constituting a suspension in the technical sense, it is worth noting that after World War II even after the German Football Association (DFB) had been refounded, it took until 1950 that its full FIFA membership rights were reinstated at the 1950 Bruxelles FIFA congress.
The first time suspension from FIFA stricto senso came up was in the 1950s vis-à-vis South Africa after a FIFA emergency committee had found in 1955 that the South African Football Association (SAFA), representing only white minority football clubs, did not constitute a national association within the meaning of relevant FIFA rules. It thereby somewhat foreshadowed the practice of the Credentials Committee of the United Nations General Assembly, which, as is well-known, ever since 1974 had considered that representatives of the white minority regime in South Africa could not represent South Africa for United Nations purposes. On 26 September 1961, at the annual FIFA conference, the South African football association was then formally suspended from FIFA, which suspension was however lifted in January 1963, albeit only for a short time. Soon thereafter, namely in 1964, and given the increased representation from African and Asian soccer associations within FIFA, the suspension of South Africa’s football association’s membership was re-imposed before South Africa was then, in 1976, formally expelled from FIFA. Finally, the South African association was re-admitted in July 1992 in the wake of the fundamental political changes then taking place in South Africa. This demonstrates how the policy of FIFA and its member associations was, if not influenced, by then at least parallel to, the concurrent development of modern international law related to the prohibition of racial discrimination.
Yet another development leading to the suspension of a national football association occurred during the Yugoslav crisis after the Security Council had, acting under Chapter VII, adopted resolution 757 (1992), and had thereby “[d]ecide[d] that all States shall (…) [t]ake the necessary steps to prevent the participation in sporting events on their territory of persons or groups representing the Federal Republic of Yugoslavia (Serbia and Montenegro)” (see para. 8 lit. b) of the text) Read the rest of this entry…
On 12 June 1015, the FIFA Executive Committee appointed former South African government minister Tokyo Sexwale to lead a monitoring committee to oversee issues related to the development of football in Palestine, and alleged interferences, by Israel, with such development. This committee was established on the basis of the decision by the 65th FIFA Congress in May 2015 after the Palestine Football Association had withdrawn its proposal to have the Israel Football Association suspended from FIFA. While this development has largely been overshadowed by the recent developments concerning alleged instances of corruption involving FIFA officials, and the ensuing announcement by the current FIFA’s President, Sepp Blatter, to resign from his position, it sheds light on the international law underpinnings of decisions made by FIFA when it comes to the status of contested territories in which a given national soccer association is based. What is more, it demonstrates how, over the years, the practice of FIFA has changed in light of developments of international law and what impact international law has when it comes to the current dispute FIFA is confronted with.
Membership in FIFA
During its early years, the FIFA Statute had simply provided that the organization consisted of “the Associations recognized by FIFA as the Associations controlling Association Football in their respective countries, provided that only one Association be recognized in each country” (see FIFA Handbook, 1st ed. 1927, p. 15; see also H. Homburg, FIFA and the ‘Chinese question’ 1954 – 1980: an Exercise of Statutes, Historical Social Research 2006, p. 69 et seq. (71)). Since 1937, FIFA had however already admitted “associations in a colony or dominion” which could then opt for directly joining FIFA whenever the “national football association of the mother country” [sic!] had signaled its consent (ibid., p. 71), thus being implicit evidence of the limited international personality of such dependent territories at the time. In the same vein, the FIFA 1937 Statutes had also provided that “[f]or countries placed under the protectorate of another country, the same principles as for dominions for colonies will be in force.” (ibid.).
As of today, Membership in FIFA is governed by its ‘Regulations Governing the Admission of Associations to FIFA’, Principle 1 of which currently provides that “[a]ny association that is seeking admission to FIFA must put forward an application that contains detailed information on its organisation, its sporting infrastructure and its territory”. Accordingly, each and every membership organization must provide data on the underlying scope ratione loci of its sphere of activities, which in case of territories, the status of which under international law is subject to dispute, might prove difficult. At the same time, Principle 3, para. 1, lit. a) thereof, dealing with the ‘Contents of application’, provides, apart from formalities, that any application for membership must include “[d]ocuments that show that the applicant represents a country in accordance with article 10 of the FIFA Statutes.” Art. 10 FIFA Statutes in turn, dealing with the admission of nationals soccer associations to FIFA, provides in its para. 1 that “[s]ubject to par. 5 and par. 6 below, only one Association shall be recognised in each Country”. For historical reasons, para 5 then provides that “[e]ach of the four British Associations [i.e. England, Scotland, Wales and Northern Ireland] is recognised as a separate Member of FIFA”, which thereby by the same token e contrario shows that these regions would otherwise not qualify as ‘countries’ for FIFA purposes. What is more is that Art. 10 para. 6 FIA Statute further provides that “[a]n Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.” It is in light of these statutory provisions that football associations from ‘territories’ as divergent as Aruba, the British Virgin Islands, ‘Chinese Taipei’, Hong Kong, the Faroe Islands, as well as New Caledonia, are as of today all members of FIFA, the lack of statehood of the respective underlying ‘territory’ notwithstanding. Read the rest of this entry…
Last week I wrote about one particular aspect of the recent Grand Chamber judgments of the European Court of Human Rights in two cases dealing with the aftermath of the Nagorno-Karabakh conflict: Chiragov and Others v. Armenia, no. 13216/05 and Sargsyan v. Azerbaijan, no. 40167/06, namely the Court’s conclusion that belligerent occupation necessarily requires troops on the ground. I also promised a more comprehensive look at the two (very important) judgments, and here it is. The two cases concerned the aftermath in the conflict, in the sense that they dealt with the right of persons displaced by the conflict to access their property (under Article 1 of Protocol 1 to the Convention), rather than with the conflict itself, which was outside the Court’s temporal jurisdiction. That said, there are numerous noteworthy aspects of these two judgments.
First, there is the cases’ basic structure. Both cases were brought by individuals, but there are more than a thousand other applications pending before the Court with essentially the same issues. While these are formally not pilot judgments in the sense the Court uses the term, they are in fact test cases on the basis of which the Court is set to resolve all of the other pending cases, unless the parties choose to settle them first. And while the cases were brought by individuals, they have a strong interstate dimension, not only because of their politically controversial subject-matter, but because Armenia and Azerbaijan both intervened as third parties in the case in which the other state was the respondent (i.e. Armenia intervened in Sargasyan and Azerbaijan in Chiragov). These were, if you will, interstate cases by proxy.
On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.
In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.
The Likely Need to Have Forces Close to the Libyan Shore
Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.
An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.
Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…