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Announcements: Munich Advanced Course in International Law; International Disaster Law Course; Summer Academy on the Continental Shelf; UN Audiovisual Library of International Law; Business and Human Rights Summer School

Published on March 17, 2019        Author: 

1. Munich Advanced Course in International Law. The Munich Advanced Course in International Law (MACIL) is a summer school held at Ludwig Maximilian University Munich (Germany) and dedicated to questions of international law. Its next session, entitled “International law without territory? – Governing spaces, resources and people beyond the confines of state territory”, will take place in late July/early August 2019. Seminars will explore the continuing importance of the concept of territory in various areas of the international legal order (e.g. climate change, investment law, refugee law, the law of the sea). The MACIL faculty will include Roland Bank (UNHCR), James Harrison (Edinburgh), Uta Kohl (Southampton), Irmgard Marboe (Vienna), Carlo Santulli (Paris II), Christian Tams (Glasgow), Christina Voigt (Oslo), and Christian Walter (Munich). Students of international law, young academics and practitioners are warmly invited to apply. Deadline for applications is 1 April (early birds) or 1 May 2019.

2. International Disaster Law Course. The 6th Edition of the International Disaster Law Course is now open for applications. The Course is organized jointly by the International Federation of the Red Cross and Red Crescent Societies, the International Institute of Humanitarian Law of Sanremo, the International Disaster Law Project and in cooperation with the Italian Red Cross and the EU Jean Monnet Module on “International and European Disaster Law” Roma Tre University. Confirmed speakers include Eduardo Valencia-Ospina (Member of the ILC and former Special Rapporteur on the Protection of Persons in the Event of Disasters), Prof. Walter Kälin (Envoy to the Chair, Platform on Disaster Displacement, Former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons) along with other high-level speakers from academia and distinguished experts from key stakeholders such as the IFRC, International Organisation for Migration, and World Health Organisation. The Course will take place in Sanremo (IT) from 17 – 21 June 2019. More information and the application form are available here.

3. Summer Academy on the Continental Shelf 2019. The Summer Academy on the Continental Shelf (SACS) will be held from 1 – 7 September 2019 under the auspices of the University of the Faroe Islands and the African Institute of International Law. SACS 2019 will be held in Arusha, Tanzania and will be limited to 32 attendees with particular interest for scientific and legal aspects relating to the continental shelf. SACS welcomes participants from a broad geographical representation with various professional and academic backgrounds. It will be tutored by judges of international courts and tribunals, members of the Commission on the Limits of the Continental Shelf and international practitioners with lengthy experiences in continental shelf matters. The deadline for submitting an application for admission is 1 June 2019. For more information see online. Read the rest of this entry…

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Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

Published on March 15, 2019        Author: 

Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69). Read the rest of this entry…

 

Shamima Begum may be a Bangladeshi Citizen After All

Published on March 14, 2019        Author: 

In 2015, Ms Shamima Begum, then a 15-year-old British citizen living in London, travelled to Syria to join the so-called Islamic State. Her fate was unknown until recently when Ms Begum was discovered in a refugee camp in Syria. On 19 February 2019, the British Home Office in a letter delivered to Ms Begum’s family, revoked her British citizenship. Now, the 19-year-old wishes to return to the United Kingdom (UK). The aim of this piece is to examine whether Ms Begum is a Bangladeshi citizen as has been claimed by the Home Office, and subsequently contradicted by the Government of Bangladesh.

Article 8(1) of the 1954 Convention relating to the Status of Stateless Persons, to which the UK is a State-party (but not Bangladesh), directs a State, in this case the  UK, to not render a person stateless by depriving him or her of their nationality.

In the UK, Section 40(2) of the British Nationality Act, 1981 states that a person may be deprived of his or her citizenship if such ‘deprivation is conducive to the public good’. Furthermore, Section 40(4) of the same Act mandates that an order to deprive a person of his or her citizenship must not make that person stateless. Section 40(4) is basically the domestic reproduction of Article 8(1) of the 1954 Convention. Hence, the Home Office is authorised by law to revoke the citizenship of an individual provided it does not render that individual stateless. Read the rest of this entry…

Filed under: EJIL Analysis, Syria
 

The “Command Responsibility” Controversy in Colombia: A Follow-Up

Published on March 13, 2019        Author:  and

A key issue arising out of the peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas is the definition of “command responsibility” that the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply when it prosecutes army commanders.

In 2017, the Colombian Congress passed a constitutional amendment containing a “command responsibility” definition that is inconsistent with the one applied under international law. A previous post reviewed the background and lead-up to the approval of that legislation. This post will examine how the controversy has evolved since. The post begins by describing the submission by the Prosecutor of the International Criminal Court (ICC) of an unusual amicus brief to Colombia’s Constitutional Court about the compatibility of the definition with international law. We then summarize the Constitutional Court’s decision upholding the definition in the amendment, before considering an ongoing case involving a former army chief, where the definition is being tested.

ICC’s Prosecutor amicus brief

In September 2017, Fatou Bensouda, the Prosecutor of the ICC (which has the situation in Colombia under preliminary examination), visited the country to obtain clarifications on certain aspects of the Special Jurisdiction for Peace, as well as information on the status of the relevant national proceedings. A month later, she submitted an amicus brief to the Colombian Constitutional Court. The brief was initially filed confidentially, but was leaked to the media and posted online. Read the rest of this entry…

 
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Negotiating Brexit in the Shadow of the Law of Treaties

Published on March 12, 2019        Author: 

It is an extraordinary day in British politics today, with the Prime Minister’s ‘enhanced’ Brexit deal to be voted on in Parliament later this evening. The outcome of today’s vote, and the votes that may follow later in the week, is of course anyone’s guess (although the WA will likely be voted down). I have now read through the Attorney-General’s new legal advice on the revised deal and have been following the debate in the House of Commons, and was struck by how remarkably the various issues being debated turned around the customary law of treaties, which operates by default, in the background, unless the UK and EU agree differently. Here are just some – readers are of course invited to discuss any relevant matter in the comments:

(1) What is the legal nature of the Joint Instrument relating to the Withdrawal Agreement, and what are its legal effects? Is it an agreement in the sense of Art. 31(2)(a) VCLT, which defines the ‘context’ of the treaty? Is it something even stronger, an ‘authentic interpretation’ of the WA? Is is also a separate treaty, even though it is not called such, because it is a written agreement between a state and an IO governed by international law, which sets out further obligations that were not in the WA? (The latter is the position of the UK government).

(2) Note in that regard the superb example of constructive ambiguity of the final paragraph of the Instrument, which allows the EU to say, on one hand, that the WA was not reopened or changed as the Instrument simply interprets the WA, and for the UK to argue that meaningful legally binding changes were made to the deal:

Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.

(3) Similarly, what is the legal nature and effects of the UK’s Unilateral Declaration? Is it simply an interpretative declaration by the UK, which is of itself incapable of having any direct legal effects, being simply a statement of the UK’s position? Or is it something more, especially because the EU has not objected to it?

(4) There seems to be consensus that the customary rules on denunciation and suspension of treaty obligations have been displaced by the express dedicated provisions of the WA. This seems to apply also for termination or suspension due to material breach. The WA does not allow the UK to exit the backstop unilaterally; it can only suspend obligations arising from it if the EU is shown to be acting in bad faith and this is determined by the arbitral tribunal established by the WA.

(5) However, the UK’s position is that it CAN unilaterally terminate the WA or the backstop Protocol in case of fundamental change of circumstance/rebus sic stantibus. The Attorney General was explicit on the point repeatedly in the Commons. Never has more been at stake, it seems, regarding the interpretation of the rule in Art. 62 VCLT.

We’ll obviously have to wait and see how this will play out, but again it is clear that Brexit is being shaped critically by the background operation of the law of treaties. It is also remarkable how much importance has been given to questions of form, i.e. how crucial it is for many MPs whether a particular obligation is political or legally binding. Readers may also be interested in the Attorney’s new advice; the Attorney’s prior advice on the WA; an opinion by David Anderson QC, Jason Coppel QC, and Sean Aughey; and an opinion by Philippe Sands QC and David Edward QC.

 

 

Equivalence and Translation: Further thoughts on IO Immunities in Jam v. IFC

Published on March 11, 2019        Author: 

At the end of February, the Supreme Court of the United States issued a landmark judgment on the immunity of international organizations in Jam v. International Finance Corporation, 58 U.S. (2019). The case concerned the meaning of the 1945 International Organizations Immunities Act (IOIA), which affords international organizations “the same immunity from suit … as is enjoyed by foreign governments.” 22 U.S.C. § 288a(b). Writing for a 7-1 majority, Chief Justice Roberts found that the IOIA incorporates a dynamic immunities regime, equivalent to whatever immunities US law affords to foreign states. The immunities of international organizations are keyed to sovereign immunity. The former evolve to meet the latter. Thus, as the US law of sovereign immunity has shifted from an absolute to a restrictive paradigm with the enactment of the 1952 Foreign Sovereign Immunities Act (FSIA), so too does the IOIA today incorporate merely restrictive immunity for international organizations.

Writing in dissent, Breyer laments the majority’s approach, arguing for a static interpretation of the IOIA on purposive grounds. Given his druthers, Breyer would have interpreted the statute as affording international organizations absolute immunity from suit – which foreign sovereigns were entitled to under US law when the IOIA was enacted in 1945. In his view, a static interpretation best accords with the IOIA’s purpose of freeing international organizations from interference through domestic litigation.

Between Diane Desierto’s thorough recent post on this blog, and Ingrid Wuerth’s preview of the case on lawfare last year, there is no need to rehash the facts and issues here. Suffice it to say that the case mostly plays out on the familiar turf of statutory interpretation – pitting Roberts, the textualist, against Breyer, the purposivist. Read the rest of this entry…

 

Announcements: CfP The Contribution of the Legal Services of the European Institutions to EU Law; CfP International Law’s Invisible Frames; ICJ Advisory Opinion on the Chagos Islands; UN Audiovisual Library of International Law; CfP European Yearbook of Constitutional Law; Protection of the Wounded and Medical Care-Givers in Armed Conflict

Published on March 10, 2019        Author: 

1. Call for Papers: The Contribution of the Legal Services of the European Institutions to European Union Law. The Research Field ‘Legal History of the European Union’ of the Max Planck Institute for European Legal History (MPIeR) issues a call for papers for the upcoming 2019 conference on the contribution of the Legal Services of the European institutions to European Union law. The conference will focus on the historical trajectories of the Legal Services via key figures, the doctrinal developments achieved by each institution, and their cooperation with academics and legal practitioners. The conference will be held on 18 – 19  June at the MPIeR in Frankfurt/Main. For further information please see the announcement and the call for papers on the website of the MPIeR.

2. Call for Papers: International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes. This workshop will address two closely related strands of analysis in recent international legal theory: social cognition and knowledge production. Applicants may employ theoretical tools borrowed from other disciplines (including philosophy, sociology, social psychology, political science etc.). They are particularly encouraged to analyse when and how socio-cognitive and knowledge production processes are relevant to law-making, interpretation, and implementation of international law. The workshop will take place on 4 – 5 December 2019 at the International Law Forum, Hebrew University of Jerusalem Law Faculty (Mount Scopus Campus). Abstracts of no more than 500 words should be sent by 15 May 2019. Decisions regarding inclusion in the workshop program will be sent by 15 June 2019. For more information about the workshop’s theme and call for papers, please see here

3. The ICJ Advisory Opinion on the Chagos Islands. The British Institute of International and Comparative Law, along with Westminster Law School, are hosting this event on 18 March 2019 from 17.30 (registration from 17.00). The event will discuss the most recent decision of the International Court of Justice, whereby the Court delivered its Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. For further information, see here. To register, see hereRead the rest of this entry…

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UK’s Position on the Diplomatic Protection of Dual Nationals

Published on March 8, 2019        Author: 

The UK Government decided today to exercise diplomatic protection over Nazanin Zaghari-Ratcliffe, a dual UK-Iranian national imprisoned in Iran (and one of a number of people who have been in such a position over the past few years). In this post I just want to briefly flag a possible evolution in the UK’s legal views on the diplomatic protection of dual nationals by one state of nationality against the other state of nationality. The traditional position was of course that diplomatic protection could not be exercised in such circumstances.

In its 2006 Articles on Diplomatic Protection, the ILC adopted a more flexible rule, which relied on a test of predominant nationality. Article 7 ADP thus provides that ‘A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.’ In the ILC’s view this more flexible rule was one of customary international law, a position embraced by some states but not others (see, e.g., here for an enthusiastic endorsement of the rule by Norway on behalf of Scandinavian states, and a more skeptical position of Japan).

The UK’s position on Article 7 has been as follows (A/CN.4/561/Add.1, p. 7):

Draft article 7 sets out a general rule of international law that a State will not support the claim of a dual national against another State of nationality. The Government of the United Kingdom will not normally take up the claim of a national if the respondent State is the State of second nationality. However, exceptionally, the Government may take up the claim of a person against another State of nationality where the respondent State has, in the circumstances leading to the injury, treated that person as a British national. However, we consider that the test for “predominant nationality” included in draft article 7 requires further clarification.

Now, obviously, it is not easy to argue that Iran has treated Zaghari-Ratcliffe as a British national – in fact Iran rejects the other nationality of its dual nationals, treating them formally as Iranians only, even if clearly many of them are being detained precisely because of their dual nationality. So it seems more likely that Foreign Office is now endorsing more expressly the predominant nationality rule that it was not very keen on when the ILC ADP were being discussed.

In that regard, I would like to flag for readers an opinion that John Dugard, who was the ILC special rapporteur on diplomatic protection, and barristers Tatyana Eatwell and Alison Macdonald have written for Redress on Zaghari-Ratcliffe’s situation, arguing precisely that the UK could exercise diplomatic protection over on the basis that her British nationality was predominant, and explaining how the predominance test was satisfied on the facts. It seems quite possible, if not likely, that the UK government’s views now substantially align with the legal and factual analysis in the Dugard/Eatwell/Macdonald opinion, which is well worth a read.

Filed under: EJIL Analysis
 

Settling the India-Pakistan Impasse … At Last

Published on March 8, 2019        Author: 

I am grateful for Christian Henderson’s careful, detailed post on the violent confrontation between India and Pakistan that began 26 February. By 3 March direct attacks between the neighbors had tapered off, in part owing to Pakistan’s release of the Indian Air Force pilot it detained after his jet crashed in Pakistan. On the Indian side of the border a harsh crack down continued against separatists — both those seeking accession to Pakistan and those seeking independence.

My own legal assessment of the direct attacks aligns with Christian’s suggestion that they constituted unlawful armed reprisals, not acts of lawful self-defense. (I discussed the prohibition on reprisals here in reference to the U.S., France, and UK’s air strikes on Syria last April.) Christian’s quote from Pakistan’s Acting Foreign Secretary was particularly revealing: Pakistan’s air strikes “[s]ole purpose being to demonstrate our right, will and capability for self defence.”

More proof could be offered, but the space is better used to note some points of difference between Christian and me and to suggest a way forward toward peace after 70 years of violence. In my view, India was the first to use force in clear violation of UN Charter Article 2(4). This serious violation committed against Pakistan just a few months before Indian national elections, could be the opening of a negotiated settlement of the conflict at the heart of the crisis, the dispute over Kashmir. Read the rest of this entry…

Filed under: Use of Force
 

Lack of Certification of the WTO Schedules of the United Kingdom: A Way for Frictionless Trade under a No-deal Brexit Scenario?

Published on March 7, 2019        Author: 

The departure of the United Kingdom (“UK”) from the European Union (“EU”) without any agreement, the so-called no-deal Brexit, seems more likely to happen after the House of Commons voted against Theresa May’s Brexit deal by a record margin of 230 votes (432-202) on 15 January 2019. Under a no-deal scenario, World Trade Organization (“WTO”) rules will govern the UK’s trading relationship with both the EU and other countries. The UK’s trade in goods and services will be subject to most-favoured nation (“MFN”) tariff rates.

However, the UK, as a member State of the EU, does not have its own schedules of concessions under the WTO – for now – because the EU, as a single customs union, has consolidated schedules for goods and services. Accordingly, to conduct its post-Brexit trade, the UK submitted draft schedules on goods and services for certification in 2018. The UK is currently negotiating its schedules with other WTO Members, but time is running short ahead of the UK’s scheduled exit from the EU on 29 March 2019. If the UK fails to certify its schedules before March 2019 – a highly likely scenario – the question becomes whether the UK could unilaterally establish its new schedules and conduct trade based on “uncertified” schedules that have not been agreed by all WTO Members. Read the rest of this entry…

 
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