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ICJ Diallo Merits Judgment

Published on November 30, 2010        Author: 

Today the ICJ delivered its merits judgment in the case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo). The Court found that in carrying out the arrest, detention and expulsion of Mr. Diallo in 1995-1996, the DRC violated his fundamental rights under applicable human rights treaties, but that it did not violate his direct rights as “associé” in the companies Africom-Zaire and Africontainers-Zaire. The judgment is available here, the Court’s press release here.

 

The Rise and Fall of Eunomia – Episode 2: A movement is born

This is the second part of a series of posts on “The Rise and Fall of Eunomia”. Episode 1 of this series can be found at here.

Eunomia’s internationalism takes shape

Initially, the real reasons for creating the State of Eunomia had been somewhat a mystery. After all, many of the social experiments that Eunomians sought to engage in were the sort that could have been engaged in in other countries, without the huge cost of doing so literally in the middle of nowhere. The style section of an international magazine described the whole experiment as ‘radical-libertarian-humanitarian-chic.’ As it turned out, however, the real plan laid elsewhere and it only began to emerge once Eunomia’s statehood had been officially recognized. There were a few telltale signs, including the proclamation that Eunomia would be an entirely monist state, and its immediate adoption of all eight major international human rights treaties as having supra-constitutional status. Some legislators went as far as to suggest that little ordinary legislation would not be necessary: the WTO rules would provide Eunomia with the framework for a market economy; the ILO treaties its labor legislation; the WHO rules its health standards, etc. Indeed, the direction in which Eunomia was headed might have been apparent to any one who carefully read the rapidly crafted Eunomian constitution, article 17 of which proclaimed:

Eunomia is a pacifist state dedicated to the pursuit of international justice. It is the obligation of the Eunomian state to strive for such international justice through every means possible, including all recourses available under international law.

 Although the first sentence sounded innocuous enough, the second one was the deal clincher. The debates leading to the adoption of the Eunomian constitution included a rag tag group of veterans of frustrated globalist causes, founding members of the International federalist society, veterans of the New International Economic Order, and various Hague appeals for peace fellow travelers. All had consistently deplored the absence of significant progress towards centralized international authority and a ‘world public order of human dignity.’ A lifetime of experience trying to influence states had led them to the dispiriting conclusion that the ways of the inter-state world were almost impossible to reform from without. Whilst academic international lawyers focused on a few landmark international judicial decisions as symbols of progress, these disenchanted apostles of civil society were more prone to see the huge black holes of the international legal order: those countless cases that were never litigated because states themselves were often complicit in keeping the international rule of law at a rudimentary stage.

A former negotiator at Montego Bay, once considered a good contender for the first Secretary General of the International Seabed Authority, made an impassioned plea before the Eunomian parliament denouncing the cupidity and short-sightedness of sovereigns. The argument was that if centralized global institutions could not be expected to take over any time soon, what was needed was for a few enlightened states – perhaps only one state – to take the lead and stand for the global community’s interest in international public order. That glorious avant garde would drag the international system out of its collective action problem kicking and screaming if it had to. And if one state was to take that responsibility, who better than Eunomia? After all, Eunomia was well taken care of, financed for decades to come thanks to a huge endowment, and could count on some of the best activist minds the world had to offer. It did not even have a national interest of its own that might stand in the way of its idealism; or rather, to the extent that it had one, it was in fact one with international law; Eunomia would be dédoublement fonctionnel without the dédoublement; world attorney without the international politics; its own interest and that of the international community in unison.

The crusade is launched

After the Eunomian constitution was ratified, the new ‘Ministry of international justice and foreign affairs’ immediately announced a catalogue of measures. Read the rest of this entry…

 

IBA Publication on Kampala Review Conference

Published on November 23, 2010        Author: 

The International Bar Association has published the latest issue of their magazine, Equality of Arm Review (EQ)  which is dedicated to the ICC Review Conference held in Kampala this past summer. The issue contains articles by

ICC President Sang-Hyun Song, Convenor of the Coalition for the ICC Bill Pace, Ugandan Ambassador Mirjam Blaak, Director of Legal Affairs at the Commonwealth Secretariat in London Akbar Khan, and prominent academics William Schabas and [yours truly]

Filed under: Conference, EJIL Analysis
 
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The Rise and Fall of Eunomia – Episode 1: Eunomia rising

Frédéric Mégret is an Assistant Professor of Law, the Canada Research Chair on the Law of Human Rights and Legal Pluralism, and the Director of the McGill Clinic for the Sierra Leone Special Court, McGill University. Alexandra Harrington is currently a Doctor of Civil Law candidate at  McGill University

It had been a masterfully planned operation from start to finish. When Grigory Savros heard the news that, following a massive volcanic eruption in the South Pacific, a new island, roughly six by eight miles, had emerged, he at first paid little attention. The incident had of course generated considerable popular interest and, as the only known island of its kind in several millennia, was the buzz of geologists. But the volcanic fumes arose hundreds of miles away from the nearest flight path, and the island was first reported as barely habitable. Savros had other things to think about. One of the world’s richest men, he had made his fortune betting against the financial stability of emerging economies through complex derivative products that only a few insiders – if any – could fathom. He had since reinvented himself as, to use the Times’ cover’s expression, ‘The World’s Biggest Philanthropist,’ one involved in everything from art to human rights, fighting global diseases to reducing global warming. Besides, he was already the proud owner of no less than two islands (one in the Caribbean, and one in the Mediterranean) in which he hardly ever spent any time.

But one detail had caught Savros’ attention and vaguely stirred up recollections from his international law days, before he became a wealthy investor, when he was still what he sometimes described in interviews as an ‘idealistic law student’ (he had quickly abandoned his initial idea of working in international law, a discipline he had found to be largely irrelevant to the ways of the world). The island was beyond the territorial waters or even the exclusive economic zone of any state. As such, it was no less than the first bit of prime terra nullius real estate to emerge in at least 200 years (with the exception of ‘fake’ terra nullius of colonization). Of course, this fact had not escaped several foreign ministries, but of the few states with any presence in the region, most concluded that it would be far too expensive to maintain a base on the island, and quickly gave up the notion. The land and the surrounding waters were devoid of any particular resource, at least the sort that could be exploited profitably. These were hard financial times globally, and no state had the appetite for an extra piece of rock in the mid-Pacific, with no economic or geopolitical value. One landlocked state in Central Asia expressed some interest in acquiring the island so that its Great Leader could claim to have ‘brought the sea’ to his country, but the plan quickly foundered. There was some vague talk at the UN General Assembly of ‘internationalizing’ the rock (which still had no name), but no one really knew what for, and the matter was deferred to a committee. A window of opportunity had been opened, but no one could quite suspect what use it would be put to.

Genesis and settlement

With no expressions of interest from states in the region, Savros summoned his inner circle of advisors to the privacy of his mountain getaway. What emerged from this evening is still a matter of speculation and what we know of it has been reconstructed from scattered archives and memoires of those who were in attendance. At first, Savros had apparently been characteristically enigmatic about the reasons for bringing them together at short notice. But after dinner and over glasses of (very good) cognac, he had flipped a switch in his parlor, turning on a spectacular holographic display of a paradisiacal island, rich with fields, roads and villages hovering just above the guests, and had made the following almost comically solemn announcement: ‘Ladies, and gentlemen, welcome to the soon-to-be state of Eunomia, the first state built by and for civil society, a state dedicated to the highest values of justice, solidarity and freedom!’ The guests had been flabbergasted and, were it not for Savros’s reputation for fits of anger, might have shared a piece of their mind that this all looked rather megalomaniac. Savros, however, had obviously given the idea considerable thought and over a night of passionate discussions had little by little convinced one after the other that this was not only a project worth trying, it could very well be the defining project of the age.

During the next weeks the decision was made to launch a secret operation, codenamed ‘Tiger Lily,’ that would begin to turn the project into reality. It was to involve, at first, six cargo ships (including two mega-container carriers, one supertanker, two large ferries and one commanding ship). The plan was for these ships to set sail from several points around the globe with shipping orders indicating routine trading routes. Read the rest of this entry…

 

ICJ Decision Helps to End Environmntal Dispute Between Argentina and Uruguay

Published on November 20, 2010        Author: 

The BBC is reporting that Argentina and Uruguay have settled a seven year environmental dispute concerning a pulp mill. The dispute was submitted to the ICJ which rendered its judgment in April this year.   According to the BBC:

 Argentina and Uruguay both say they are happy after a deal was reached to end their long-running row over a pulp mill on the banks of their shared river.

The breakthrough came when their foreign ministers signed an accord setting out how the plant and the river would be environmentally monitored.

Argentina argued the mill polluted the river, while Uruguay said strict environmental codes were followed.

The dispute saw frequent protests on the Argentine side and strained ties.

“I’m very happy with the accord,” Uruguayan President Jose Mujica said, while Argentine Foreign Minister Hector Timerman used similar language, tweeting that “both governments are very satisfied”.

Mr Timerman and his Uruguayan counterpart, Luis Almagro, signed an accord late on Sunday, finessing an earlier agreement reached by the two countries in July.

The accord sets up a scientific committee composed of experts from both nations which will monitor the pollution levels in the River Uruguay and within the mill.

The process by which this dispute has been settled illustrates the role that the ICJ and international tribunals can play in dispute settlement. Those who view the international legal system by comparison with domestic legal systems will comment on the general absence of effective enforcement mechanisms in international law. However, this analogy is misleading in many respects. In the first place there are significant aspects of domestic law (particularly domestic constitutional and public law) where mechanisms of enforcing judicial decisions are similarly lacking. Secondly, a lack of enforcement mechanisms by no means indicates a failure of  judicial or arbitral dispute settlement . That view ignores the ways in which submission of disputes to adjudicative mechanisms can work to either get the parties to the negotiating table or can play a significant role within the negotiating process. Read the rest of this entry…

 

More on Congo v. France Discontinued

Published on November 19, 2010        Author: 

The discontinuance of the Certain Criminal Proceedings in France (Republic of the Congo v. France) (ICJ Press Release) which Marko blogged about yesterday is rather strange indeed given the other news that has emerged recently regarding possible criminal proceedings in France against the Congolese Head of State. As the ICJ Press Release relating to the discontinuance of the case notes, the case brought by Congo against France before the ICJ:

seek[s] the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint for crimes against humanity and torture filed by various associations against the President of the Republic of the Congo, Denis Sassou Nguesso, the Congolese Minister of the Interior, Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the Congolese Armed Forces.

Ordinarily, one would have thought that a discontinuance of the proceedings indicates that the dispute underlying the proceedings has been solved. However, just last week it was announced that the Cour de Cassation in France has decided that NGO’s, including Transparency International, may launch criminal proceedings in France in relation to allegations of corruption (and human rights violations) by three foreign heads of State, nameley Denis Sassou Nguesso (Rep. of Congo); Oman Bongo (formerly head of State of Gabon, now deceased and Obiang Mba sogo (Equitorial Guinea).  See on these developments, the post over at IntLawGrrls. So the underlying dispute with regard to the use of French courts to pursue cases against Congolese leaders is by no means resolved. Read the rest of this entry…

 

Congo v. France Case Discontinued

Published on November 18, 2010        Author: 

The ICJ has announced today that Congo has withdrawn its application against France in the case concerning Certain Criminal Proceedings in France (Republic of the Congo v. France). (ICJ Press Release). The case dealt with the lawfulness of criminal proceedings in France taken under the principle universal jurisdiction. A notable feature of the case was also that the ICJ’s jurisdiction was based on forum prorogatum, i.e. France’s consent that the specific case be brought against it.

I am myself not at all familiar with the history of the litigation, but I find it quite odd for an application to be discontinued at such a late stage in the proceedings. The case has been pending since 2002, and it has gone through no less than three (3!) rounds of written pleadings. Oral proceedings were due to start on 6 December this year, i.e. a month before the request for discontinuance was filed with the Court. I really wonder what precipitated such a turn of events. Comments by readers with some insights into the matter would be most welcome.

 
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Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU

Published on November 16, 2010        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. Read the rest of this entry…

 

Formation of Custom and the Inherent Powers of the Special Tribunal for Lebanon

Published on November 11, 2010        Author: 

Yesterday the STL Appeals Chamber issued its first substantive decision (h/t Bill Schabas’ blog), penned by Professor Antonio Cassese, who was not only the presiding judge but also the judge rapporteur in the Chamber. The decision delves in great detail into the concept of inherent powers of international courts and tribunals, and is strongly reminiscent of the ICTY Appeals Chamber’s first decision in Tadic, over which Judge Cassese obviously also presided.

Expansive invocations of inherent powers have not come without controversy. The STL decision, although ostensibly dealing with a very technical matter of the access of a potential suspect to documents in his case file, is well worth the read on several points of principle. I was particularly struck by the Appeals Chamber assertion (para. 43 of the decision) that a rule of customary international law now exists to the effect that international courts and tribunals possess an inherent jurisdiction, which confers on each of them the power to determine the scope of their own jurisdiction (competence de la competence; Kompetenz-Kompetenz). I was even more struck by how the Appeals Chamber went on to prove that such a customary rule existed (para. 47):

The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.

Fantastic, no? Note how custom now apparently equals what tribunals say is custom, plus lack of objection by anyone else. Note also how the Appeals Chamber does not refer to state practice and opinio juris, but to practice pure and simple, as well as to the ‘lack of any objection by States, non-state actors or other interested parties‘ and the ‘acquiescence of all the international subjects concerned.’ Hardly an orthodox account of the formation of custom!

 

Philippine Supreme Court Silencing Dissent?

Published on November 9, 2010        Author: 

Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?

What it’s about

The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.

Read the rest of this entry…