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Mapping the Peace: The Request for Interpretation in the Temple of Preah Vihear Case

Published on November 20, 2013        Author: 

Inna Uchkunova, New Bulgarian University (LLM), is a member of the International Moot Court Competition Association (IMCCA), Bulgaria. Oleg Temnikov is an Attorney-at-Law and Associate at the Sofia Office of Wolf Theiss law firm.

There is a fable which tells of two brothers who made their living from farming. They shared a commonPreahvihear farmland and divided the harvest equally. Every year, the night after harvesting, the same thing happened. Each brother would think that the other one deserves a greater share of the grain, so each would fill two sacks and will sneak unnoticed into his brother’s barn to put the sacks there. One such night, the brothers bumped into each other halfway between their houses and thus they understood what has been happening. Word spread in the village and their compatriots decided to make a shrine on the place of their meeting to commemorate the compassion of the two brothers.

The story of the Temple of Preah Vihear (aerial view above left, credit) is a different one. Instead of bringing people together, it has divided two nations for decades. The Temple has been a source of contention between Cambodia and Thailand since Cambodia’s independence from French rule in the mid-1900s. On 11 November, the ICJ rendered a judgment on Cambodia’s Request for Interpretation of the Court’s 1962 judgment in the Preah Vihear case. This post discusses the history of the case and the recent judgment.

Cambodia first instituted proceedings before the ICJ in 1959, after Thailand occupied the Temple and negotiations failed to produce a peaceful settlement. Cambodia asked the Court to declare that Cambodia had sovereignty over the Temple and that Thailand was obliged to withdraw its forces. In its final submissions, Cambodia presented additional claims asking the Court to adjudge, inter alia, that “the frontier line between Cambodia and Thailand, in the Dangrek sector, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex 1 to the Memorial of Cambodia).” The Court determined this claim to be inadmissible as a “new claim” and held that it “can be entertained only to the extent that [it] give[s] expression to grounds, and not as claims to be dealt with in the operative provisions of the Judgment.” Read the rest of this entry…

 
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The Virtues of Investor-State Arbitration

Published on November 19, 2013        Author: 

In my last post I discussed the different options for reforming investor-state dispute settlement put forward in a recent UNCTAD policy paper and argued that enacting institutional reforms without addressing substantive law is unlikely to fully address investment law’s legitimacy problems. Instead, I suggested that the current regime could be reformed from within, that is, by arbitrators bringing their conduct in line with public law values, in particular the idea of the rule of law. Today, I want to discuss the virtues of investor-State arbitration in order to show why reforming this institution from within, rather than restricting access to it, or completely overhauling it, makes sense.

The Importance of Individual Recourse to Investor-State Dispute Settlement

Investor-State arbitration is important because, above all, it offers foreign investors a mechanism to hold States accountable for breaches of the promises they make in investment treaties. This transforms investment treaties from political declarations into readily enforceable rules to stabilize investor-State relations. Conversely, from the host State’s perspective, the investor’s access to arbitration enables States to make the commitments vis-à-vis foreign investors under investment treaties credible. This, in turn, reduces the political risk of foreign investment, lowers the risk premium connected to it, and makes foreign investment projects more cost-efficient. This benefits investors and host States, as the products and services offered become cheaper.

Certainly, the credibility of commitments of the host State is not only a matter of the availability of dispute settlement. Reputation, community pressure, the moral obligation to keep promises, or host States’ self-interest may also contribute to its living up to promises made in investment treaties. A host State will also be restrained in its treatment of foreign investors as mistreatment of one investor may keep others from investing. Yet, such mechanisms only work imperfectly because host States can benefit by unilaterally breaching their original obligation after an investor has made its investment, for example the construction of a power plant or factory, by imposing additional obligations or even expropriating the investment. For host States to make credible commitments and to offer ways to be held accountable, independent third-party dispute settlement mechanisms are necessary.

Domestic and International Fora and Their Limits

Such mechanisms can be set up at the domestic and/or the international level. However, host State courts are often not well-positioned to enforce governments’ promises vis-à-vis foreign investors. Read the rest of this entry…

 
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Crocodile Tears: The UK Supreme Court’s Broad Definition of Terrorism in R. v Mohammed Gul

Published on November 18, 2013        Author: 

Antonio Coco - PictureAntonio Coco is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

 

On 25 October 2013, in its judgment in the R v Mohammed Gul case, the Supreme Court of the United Kingdom tackled two important issues: the definition of terrorism in times of armed conflict and the relationship between domestic legislation and international rules criminalizing certain behaviours. On both issues, the judgment is rather unsatisfying and may be considered a step back from the stand previously taken by the Court of Appeal in the same case (upon which I commented in the Journal of International Criminal Justice, vol. 11(2), 2013, pp. 425-440, some time ago; see also the excellent post by Kimberley Trapp here on EJIL:Talk!). In particular, the Supreme Court found the terrorism definition in UK law to be both unwise and undesirable but then relied on it to confirm the defendant’s conviction.

The defendant, a law student of British nationality, was accused of having disseminated terrorist publications, an offence under Section 2(3) of the UK Terrorism Act 2006. Actually, his conduct consisted in uploading onto the Internet, and particularly on Youtube, videos of attacks against military targets in Chechnya, Iran and Afghanistan. The videos were accompanied by prayers and praises for the attackers. One legal element of the offence is that the publication – in this case the videos – concerns actual terrorist attacks. The bone of contention here, then, is whether attacks against military targets in the context of non-international armed conflicts (NIACs) can be labelled as terrorist attacks.

The definition of terrorism in UK legislation is contained in Section 1 of the Terrorism Act 2000. It basically foresees three requirements: (1) an act or threat which involves serious violence or danger to the life of persons, serious damage to property, or serious interference with or disruption of electronic systems; (2) the “purpose of advancing a political, religious, racial or ideological cause”; and (3) the fact that the act or threat is “designed to influence the government or an international governmental organization, or to intimidate the public or a section of the public”. The act or threat need not to be designed to influence a government or an international organization or to intimidate the public when it involves the use of firearms or explosives. This means that any threat or use of firearms or explosives motivated by a political or ideological cause is an act of terrorism, as long as it involves serious danger to persons or serious damage to property and regardless of its purpose.

The definition is practically very broad (as recently noted by K.J. Heller). It seems to label as terrorist most acts of warfare in a NIAC, regardless of whether they are lawful or unlawful under International Humanitarian Law (IHL) and whether they are carried out by the armed forces of a State or by a non-State armed group. Indeed, most hostile acts in an armed conflict are likely to cause serious violence to persons or serious damage to property, and all of them are motivated by a political or ideological cause. Arguably, any hostile act in an armed conflict is designed to influence a government or involves the use of firearms or explosives. According to this definition, every person embracing weapons in a NIAC is considered a terrorist. The Prosecution in the Gul case argued that such a wide definition is counterbalanced by the requirement that prosecutions for terrorism are authorized by the Director of Public Prosecution if the activity occurred in the UK, or by the Attorney General if it occurred abroad, thus ensuring that criminal charges are formulated only in the appropriate cases (§ 30). This contention, far from solving the problem, seems to raise even more concerns, as I shall explain below. Read the rest of this entry…

 

Announcements: UN Courses and Fellowship, New IHL Events Website, Conferences and Calls for Papers

Published on November 16, 2013        Author: 

1.  The United Nations Regional Courses in International Law and the International Law Fellowship Programme are accepting applications for participants for their 2014 programmes. These unique training opportunities in public international law bring together leading scholars and practitioners from across the globe to engage in interactive discussions on a broad range of core subjects of international law. These courses are intended to enable qualified professionals, in particular government officials and teachers of international law, from developing countries and countries with emerging economies, to deepen their knowledge of international law and to engage in dialogue on current international law topics, as well as specific subjects of particular interest to the countries in a given region. More information can be found: for the Regional Courses, here; for the International Law Fellowship Programme, here. The deadline for applications is 1 December 2013.

2.  ALMA – Association for the Promotion of International Humanitarian Law has launched a new section of their website – Upcoming IHL Events – Worldwide. This database aims to provide general information about all upcoming events related to international humanitarian law. The events are divided by location (Europe, North America, South America, Middle East and Asia) for an easier search of nearby events. Those who wish to add an event to the website can email events [at] alma-ihl [dot] org.

3.  Call for Papers – International Institutions: Law and Governance, ASIL IOIG Works-in-Progress Workshop 2014. The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on Friday, February 7th and Saturday, February 8th, 2014, at the Sandra Day O’Connor College of Law at Arizona State University in Tempe, Arizona.  Authors interested in presenting a paper at the workshop can submit an abstract to David Gartner (David.Gartner [at] asu [dot] edu), Justin Jacinto (jjacinto [at] curtis [dot] com), and Julian Arato (arato.julian [at] gmail [dot] com) by the end of the day on December 2. Abstracts should be a couple of paragraphs long but not more than one page. Papers should relate to the topic of international institutions and governance.  Papers should not yet be in print so that authors will have time to make revisions based on the comments from the workshop.

4.  LSE’s Security in Transition Programme announces an international conference and call for papers. The conference title is ‘Law, Justice, and the Security Gap’. The conference will be held in London on 21 June 2014 at the London School of Economics & Political Science. The world is in the midst of a profound change in the way that security is conceptualized and practiced.  Up until 1989, security was largely viewed either as ‘internal security’ or as ‘national’ or ‘bloc’ security and the main instruments of security were considered to be the police, the intelligence services and the military.  This traditional view of security fits uneasily with the far-reaching changes in social and political organisation that characterize the world at the beginning of the twenty-first century. What we call the ‘security gap’ refers to the gap between our national and international security capabilities, largely based on conventional military forces, and the reality of the everyday experience of insecurity in different parts of the world.  Please send a paper abstract of 300-500 words and a CV to Pippa Bore at p.j.bore [at] lse [dot] ac [dot] uk by 6 January 2014.  More information here.

5.  The Institute of Law Studies of the Polish Academy of Sciences, Warsaw Poland, announces the conference ‘International Law between Constitutionalisation and Fragmentation: the Role of Law in the Post-national Constellation’. The conference will be held on 18-19 November 2013 at the Institute of Law Studies, Polish Academy of Sciences, Staszic Palace, Nowy Swiat 72, Warsaw, Poland. More information is available here.

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The Political Offense Exception: Punishing Whistleblowers Abroad

Published on November 14, 2013        Author: 

Mark KielsgardDr. Mark D. Kielsgard, is an Assistant Professor of Law at City University of Hong Kong.

 

 

On June 14, 2013, the U.S. lodged a criminal complaint against Edward Snowden for theft of government property and espionage after he had fled the country. Snowden is seen by many as a hero and modern whistleblower. Protecting whistleblowers has become increasingly important as the U.S. has been stepping-up use of the Espionage Act of 1917 to prosecute suspected whistleblowers (Obama’s Abuse of the Espionage Act is Modern-day McCarthyism, The Guardian, Aug. 6, 2013). Government employees, contractors and journalists have voiced concern over reporting misconduct for fear of government reprisals. In light of recent developments in the U.S. and the general temptation of all governments to cut corners in the post-911 era, extradition protection for whistleblowers who seek protection abroad is essential to protect political activism and foster political change. This essay will consider the continued relevance of the political offense exception common to most extradition treaties and discuss its implications for modern whistleblowers abroad.

The U.S. seems to provide fugitives with among the lowest threshold of protection while many other states have evolved their standards. This is largely due to the antiquated interpretation of the traditional “incidence” test recognized for “relative political offenses” under U.S. law. As virtually no political offense can qualify as a “pure political offense,” a “relative political offense” analysis is indispensible. By recognizing a lower threshold of protection for “relative political offenses,” U.S. law has effectively rendered this exception meaningless.

The Political Offense Exception

The political offense exception dates back to at least the 19th century and has several justifications. It is premised on the belief that individuals have a right to resort to political activism to foster political change and manifests the requirement of fairness that individuals should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Additionally, it complies with the right of self-determination, that foreign governments should not intervene in the internal political struggles of other nations. This exception is commonly included in extradition treaties and is provided in the United Nations Model Treaty on Extradition (G.A. Res. 45/116) at article 3(a). Read the rest of this entry…

 
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The ‘Mackerel War’ Goes to the WTO

Published on November 13, 2013        Author: 

Faroe_Islands_in_its_regionIn a typical David and Goliath story, the Faroe Islands – a small archipelago situated northwest of Scotland, halfway between Iceland and Norway, and inhabited by less than 50,000 people – have  requested consultations with the European Union under the WTO’s Dispute Settlement Understanding. The dispute, which concerns fishing rights in the North Atlantic, has been dubbed the ‘mackerel war’ although it primarily concerns herring – mackerel being described as an ‘associated’ species.

Atlanto-Scandian herring is the largest herring stock in the world. Heavy exploitation due to overfishing led the stock to collapse and to the cessation of all fishing from the early 1970s to the 1990s. Atlantic herring is highly migratory and during its life cycle it migrates between the 200-miles EEZs of several States. Today, fishing quotas are jointly managed by the Faroes, Iceland, Norway, Russia, and the EU under the Atlanto Scandian Management Arrangements. In recent years, the Faroes have been catching about 17 percent of the entire quota, although their allocated share is approximately five percent. The Faroes have justified the higher quota arguing, together with Iceland, that rising sea temperatures have led to an increase in fish stocks.

On 28 August 2013 the EU introduced ‘trade measures’ against the Faroe Islands. The measures include a prohibition on imports of herring and mackerel into the EU, as well as the prohibition of use of EU ports by Faroese vessels. The Faroes has condemned the EU sanctions and declared the measures a ‘contravention of… international obligations to cooperate on the management of shared fish stocks.’

The dispute has left the Danish Government in a difficult position. Read the rest of this entry…

 

The Impact of the ECtHR’s Judgment in Maktouf-Damjanović on Accountability and Punishment for War Crimes in Bosnia-Herzegovina

Published on November 12, 2013        Author: 

Francesco De SantisFrancesco de Sanctis is assistant professor at the Sarajevo School of Science and Technology and works as consultant on justice sector monitoring and reform.

 

The BiH War Crimes Chamber and the laws applicable to war crimes trials in BiH

The War Crimes Chamber of Bosnia-Herzegovina (WCC) has been generally considered as a successful effort to prosecute crimes committed during the conflict in the former Yugoslavia at the domestic level (see, in this regard, reports from OSCE and ICTJ). The WCC closely cooperates with the ICTY and received most of the cases transferred by the Hague Tribunal to domestic jurisdiction as part of its completion strategy; it is established within the Court of BiH and is a wholly domestic institution. As such, its work falls under the review of the European Court of Human Rights (ECtHR), which in  a Judgment by the Grand Chamber in Maktouf-Damjanović vs. Bosnia-Herzegovina issued in July 2013 found that the WCC had violated Art. 7 of the ECHR in connection with the convictions of the applicants due to the retroactive application of criminal legislation in their war crimes cases. This post will underline some serious problems related to the interpretation of this Judgment and to its implementation by the WCC with regard to the processing of future cases and the re-opening of adjudicated cases which may be deemed to fall under the Judgment’s scope.

In order to understand the content and relevance of Maktouf-Damjanović it is necessary to briefly outline the substantial criminal laws applied in atrocity crimes proceedings held in BiH. The 1976 Criminal Code of the former Socialist Federal Republic of Yugoslavia (SFRY CC) was in force throughout the 1992-1995 conflict. Under this Code, war crimes and genocide could be punished with imprisonment from a minimum of 5 years (1 year in case of extraordinary mitigating circumstances) to a maximum of 15 years or, in the most serious cases, with the death penalty, which could be commuted to 20 years imprisonment. This Code has been and is still generally applied by courts at the entity level in war crimes cases; since the death penalty is not anymore applicable in BiH after the 1995 Dayton Agreement, these courts have been imposing sentences up to 15 years for war crimes. In 2003 this legal framework changed as the Office of the High Representative (OHR) imposed a Criminal Code at the State level (BiH CC) which punishes war crimes, genocide and crimes against humanity with imprisonment from a minimum of 10 years (5 years in case of extraordinary mitigating circumstances) to a maximum of 45 years. This Code has been applied in the overwhelming majority of cases processed by the WCC. Since the beginning, however, the lawfulness of its application by the WCC has been a matter of intense legal discussion and controversy at the political level, to the extent of becoming one of the issues at the center of the EU-BiH Structured  Dialogue on Justice. Read the rest of this entry…

 

The European Union: Rule of Law or Rule of Judges?

Published on November 11, 2013        Author: 

Jakob CornidesJakob Cornides, JurD, serves as an official in the European Commission’s Directorate General for Trade. The views expressed in this contribution are the author’s, and are in no way attributable to the institution where he is employed.

In this year’s “State of the Union Address”, delivered on 11 September 2013 at the European Parliament in Strasbourg, Commission President Barroso announced that the Commission would come forward with a communication that would contain proposals for a “general framework” to address “challenges to the rule of law in our own member states”. Just one week earlier, on 4 September, Commission Vice President Viviane Reding had given a talk at the premises of the Center for European Policy Studies (CEPS), in which she outlined what such a “rule-of-law-mechanism” might look like. While it must be supposed that, rather than an official Commission position, this talk represented nothing but Commissioner Reding’s personal views, it nevertheless could be seen as a sort of kite-flying exercise with the purpose of testing the reactions of the public to ideas for which the Commissioner wants to garner support. The Commissioner’s intention to frame the debate is further underlined by the fact that she will host a conference in Brussels on 21/22 November in Brussels, where one panel has been set up to deal with her proposal, which has been summarized in a discussion paper.

Commissioner Reding. Photo from the CEPS website

In this post I will set out the “challenges” that Commissioner Reding thinks should be addressed and then describe the remedies that she proposes before offering my own views on whether there is indeed a problem and my analysis of the proposed solutions. In my view, the Commissioner’s analysis of supposed problems is rather unconvincing, and her proposals appear more likely to create new problems than to solve existing ones. In particular, her proposals would accord excessive power of the judicial institutions of the European Union and in effect end the sovereignty of Member States.

The so called “Rule of Law” Crisis

In her CEPS speech, Mrs. Reding specifically mentioned three cases in which a “rule-of-law-crisis” in a Member State made an intervention by the Commission necessary: (1) the political mayhem surrounding the French government’s decision to repatriate  several thousand Roma originating from Romania and Bulgaria, who had neither residence nor work permits, back to their countries of origin; (2) the lively debates, in particular in the European Parliament, concerning the new constitution of Hungary in 2011; and (3) the constitutional crisis in Romania in 2012, where the newly elected Government, attempting to divest State President Traian Basescu of powers, refused to abide by a decision of the country’s Constitutional Court finding that a referendum to impeach the President had failed to attain the necessary quorum. According to Commissioner Reding, these three cases illustrate that a new “rule-of-law-mechanism” is necessary for the EU in order to prevent national governments from violating the EU’s common values. Read the rest of this entry…

 

Lieber Prize 2014: Call for Submissions

Published on November 10, 2013        Author: 

It’s that time of the year again…

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

  Read the rest of this entry…

 
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Announcements: Lieber Code Conference, ICC Moot, Postdoc Fellowships

Published on November 9, 2013        Author: 

1.  On Nov. 21, 2013, Columbia Law School will host a conference “From Gettysberg to Guantanamo: 150 Years of the Lieber Code and the Law of Armed Conflict”. Drafted by Columbia University Professor Francis Lieber and signed by President Lincoln in 1863 as General Order No. 100, the Lieber Code represented the world’s first attempt to codify the laws of war.  This conference celebrating its 150th anniversary will address the historical origins of the Code, its impact on the development of international humanitarian law and its continued significance to modern challenges in armed conflict. It will feature a lunch keynote address by Brigadier General Rich Gross, U.S. Army, Legal Counsel to the Chairman of the Joint Chiefs of Staff. Panelists will include Sir Adam Roberts, University of Oxford; Sir Daniel Bethlehem, former Legal Adviser to the United Kingdom Foreign & Commonwealth Office; Prof. John Witt, Yale Law School; Prof. Robert Chesney, University of Texas; Dapo Akande, University of Oxford; Maj. Gen. Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces; Jelena Pejic, ICRC; Marten Zwanenburg, Senior Legal Advisor in the Netherlands Ministry of Defense; Dr. Bruce Oswald, Melbourne Law School; Naz Modirzadeh, Harvard Law School and Sarah Cleveland, Philip Bobbit and Matthew Waxman of Columbia Law School. Further details are available at the conference website.

2.  The International Criminal Court (ICC) Moot Court Competition will take place from 19 until 23 May 2014 in The Hague, the Netherlands. The ‘City of Peace and Justice’ will welcome over 250 students from 50 universities and over 30 different countries for this large-scale moot court, simulating the proceedings of the ICC. The Competition brings together students of diverse backgrounds and cultures from both Member States and Non-Member States. The Competition is organized in close cooperation with the International Criminal Court and will operate in English, Spanish (organized by the Iberoamerican Institute for Peace, Human Rights and International Justice), Arabic and French. Regional rounds will take place in the USA (organized by Pace University), Russia (organized by Moscow State Law Academy) and China (organized by China University of Political Science and Law). More information on the ICC Moot Court Competition can be found at the competition website. For questions or to become involved, email grotiuscentre [at] cdh [dot] leidenuniv [dot] nl.”

3.  Two postdoctoral fellowships at iCourts: Europe and New Global Challenges (EuroChallenge). Two 3-year postdoctoral fellowships are now available at iCourts, the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. The fellowships are to be carried out as part of the interdisciplinary EuroChallenge Project in combination with the overall iCourts research agenda. More specifically, iCourts is looking for projects which address the broader question of the changing role of the “European legal-political space in a new global order? The global challenge to European markets, human rights and constitutionalized democracy”. See further here and apply on-line hereEuroChallenge is a major new research project with an interdisciplinary approach that addresses the place of Europe in the context of a rapidly and radically changing global order. iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts, is dedicated to the study of international courts, their role in a globalizing legal order and their impact on politics and society. To understand the crucial and contemporary interplay of law, politics and society, the centre hosts a set of integrated interdisciplinary research projects on the causes and consequences of the proliferation of international courts.

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