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To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Published on May 14, 2019        Author:  and

As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’. Read the rest of this entry…

 
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An Analysis of the Use of ICJ Jurisprudence in Investor-State Dispute Settlement

Published on May 13, 2019        Author: 

Last October 2018, the International Court of Justice (“ICJ” or “the Court”) issued its merits judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In a brief passage, the Court summarily dismissed Bolivia’s argument that the doctrine of “legitimate expectations” exists in general international law outside the context of fair and equitable treatment clauses. Despite the brevity of the Court’s analysis – and the minor importance of the legitimate expectations issue in that case – this finding drew attention from media outlets dedicated to investor-State dispute settlement (“ISDS”), including IAReporter. That the discussion of legitimate expectations in the Bolivia v. Chilejudgment was considered newsworthy in the ISDS sphere is a reflection of the importance that ISDS practitioners place on ICJ jurisprudence. As Professor Alain Pellet observed in a 2013 lecture, “[n]ot only do … investment tribunals… refer to the jurisprudence of the World Court, but they show a particular deference to it.”

There is some evidence, discussed below, to suggest that ISDS tribunals have referred to ICJ jurisprudence with increased frequency in recent years. Moreover, as ICJ President Abdulqawi Ahmed Yusuf highlighted in his October 2018 speech to the U.N. General Assembly, the Court today is particularly busy. There may thus be even more opportunities for jurisprudential cross-pollination in the near future. Now is an opportune time to consider why, when, and how investor-State tribunals refer to ICJ jurisprudence.

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Announcements: London Conference on International Law; CfP Bernard and Audre Rapoport Center for Human Rights and Justice; CfP International Investments and Ecological Sustainability; Stockton Center for International Law Visiting Research Scholar Program; CfA Erik Castrén Institute of International Law and Human Right; Critical Approaches to International Law Symposium; Law & Practice of International Courts and Tribunals Rosalyn Higgins Prize; Law of Immunities of International Organisations after Jam

Published on May 12, 2019        Author: 
1. The London Conference on International Law, 3-4 October 2019 at the Barbican, London. What is the use of international law and how do we engage with it? The London Conference on International Law will bring together international law academics, judges, practitioners, representatives of civil society, business-leaders, and other stakeholders to see how States and all other actors engage with international law. Visit the conference website for details on the programme and confirmed speakers. 
 
2. Call for Papers – Bernard and Audre Rapoport Center for Human Rights and Justice. The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin, School of Law invites submissions for an interdisciplinary conference on the theme of “Prison Abolition, Human Rights, and Penal Reform: From the Local to the Global,” to be held 26 – 28 September 2019. The full call for papers can be found here.
 
3. Call for Papers: International Investments and Ecological Sustainability. The International Investments in Latin America Network and the School of Policy and Government of the Universidad Nacional de San Martín, with the support of the University of Dundee and the Transnational Institute, are organizing a workshop on International Investments and Ecological Sustainability on the 25 – 26 July 2019 at the Universidad Nacional de San Martín, Argentina. We call on scholars from across social sciences to submit abstracts by 31 May 2019. We particularly encourage submissions from the perspective of low and middle-income countries, noting that funding might be available to support their participation. Further information here.
 
4. Stockton Center for International Law Visiting Research Scholar Program. The Stockton Center for International Law is now accepting applications for its Visiting Research Scholar Program. An integral part of the U.S. Naval War College, the Stockton Center is an internationally recognized research institute focusing on the most challenging questions of international law pertaining to the use of force, the law of armed conflict, military operations, the law of the sea, and maritime security. Visiting Research Scholars typically spend two to three months at the Center, but shorter and longer stays are possible. Additional details and the application requirements are available here.
 
5. Call for Applications – Erik Castrén Institute of International Law and Human Right, Finland, Helsinki Summer Seminar. The Eric Castrén Institute of International Law and Human Rights invites you to the 31th Summer Seminar on International Law – ‘International Environmental Law: Process as decline’. The seminar will take place 26 – 30 August 2019 at the University of Helsinki. The Summer Seminar applies a critical perspective to fundamental questions such as: Can the current preferred modus operandi of international environmental law respond effectively to the massive environmental and human health crises of the present and future? The seminar encourages international environmental law students, scholars and professionals to unlearn pragmatic, instrumentalist or functionalist ways of doing international environmental law. Further information and application deadlines can be found on our website. If you have further questions, contact intlaw-institute {at} helsinki(.)fi.
 
6. Critical Approaches to International Law Symposium. This Symposium will take place at Griffith College Dublin, Faculty of Law from 1 – 4 August, 2019. The deadline for registration has been extended, and there are 10 scholarships for scholars from the Global South available. For further information, see here

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Passportisation: Risks for international law and stability – Part II

Published on May 10, 2019        Author: 

Editor note: This is Part II of a two-part post. See Part I here.

Part One of the blogpost examined the recent Russian decrees on a fast track procedure for conferring Russian nationality on inhabitants of Eastern Ukraine and explained international legal principles which govern such extraterritorial naturalisations. 

III. Striking the Balance: International Legal Limits on Passportisation

The conflicting individual and governmental interests and the overarching global value of a stable repartition of jurisdictions are reconciled by posing specific legal limits on the power of a state to naturalise citizens of another state.

The Prohibition of an Arbitrary Refusal to Release One’s Nationals

The prohibition of arbitrary decisions concerning nationality issues has emerged as a standard of reference in the international law of nationality. The Report of the UN Secretary General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009 (A/HRC/13/34), stated that “[T]he notion of arbitrariness could be interpreted to include not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability also” (para. 25).

A state may not categorically and without any legitimate reason (i.e. arbitrarily) prevent its citizens from acquiring a different citizenship. Inversely, a state may validly oppose the naturalisation of its citizens if its governmental interests outweigh both the interests of the concerned natural persons and the interests of the naturalising state. In that case, the refusal to release its national would not be arbitrary. A state’s refusal to release a national who continues to reside within its own territory is presumptively not arbitrary.

The Requirement of a Factual Connection

International law has traditionally required that there be a factual relationship between the person to be naturalised and the naturalising state. It has never allowed a state to confer its nationality by naturalisation upon persons possessing the nationality of another state and to whom the conferring state has no factual relation at all. Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 
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Passportisation: Risks for international law and stability – Part I

Published on May 9, 2019        Author: 

I. Fast track to Russian nationality

On 24 April 2019, the Russian President issued an Executive Order identifying groups of persons entitled to a “fast-track procedure” when applying for Russian citizenship otherwise regulated by the Russian Law on Citizenship (Federal Law No. 62-FZ of 31 May 2002). The decree facilitates the acquisition of Russian nationality by residents from various districts of Ukraine’s Donetsk and Lugansk regions, notably without taking residency in Russia. The regions border Russia and are struck by a military conflict between the central government and separatist forces under heavy involvement of Russia. On 1st May 2019, the President issued a second “Executive Order on Certain Categories of Foreign Citizens and Stateless Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship”. The new fast track procedure is potentially open to around 4 million people living in the conflict area of Eastern Ukraine.

In the Security Council of 25 April 2019, the representative of the Russian Federation explained “that there is a high demand for Russian citizenship among people from south-eastern Ukraine whose living conditions Kyiv has made intolerable. In other words, Russia’s legislative initiative is a response to the aspirations of many thousands of people. It is not we who are forcing them to become Russian citizens but rather they themselves who desire it. We are simply providing them with an opportunity and significantly simplifying the process. (…) Why was it done? The conflict in Donbas has been going on for five years. For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine. They were denied the right to vote in the recent presidential elections.” “[T]he residents of Donetsk and Luhansk (…) have been deprived of income sources, pensions and benefits that other Ukrainian citizens are entitled to. They would not have survived without Russia (…). The people of Donetsk and Luhansk deserve to have reliable State care and social protection once again. (…) They are getting none of that from the Ukrainian Government, and we therefore felt compelled to offer them assistance.” (Vassily A. Nebenzia, Security Council 8516th meeting, Verbatim Record, UN Doc S/PV.8516, p. 15-16). The decrees might also respond to the Ukrainian draft language law which establishes Ukrainian as the language of the state and relegates Russian to a regional language (Bill №5670-d, reading in Parliament on 25 April 2019, not yet in force ).

The recently elected President of Ukraine spoke of “another unprecedented interference of the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements. In addition, the Kremlin therefore deliberately and cynically violates international humanitarian law, which prohibits the occupation authorities from changing the citizenship of the inhabitants of the occupied territories.” (24 April 2019).

In the UN Security Council Meeting of 25 April 2019, numerous delegates criticised the Russian measures. The Slovak OSCE Chairmanship expressed “deep concern”.

The recent decrees inscribe themselves in an overall Russian policy of generously conferring its nationality on residents of those states which emerged from the break-up of the Soviet Union. In Crimea, an active Russian “passportisation” policy had allegedly been pursued since 1991, until the peninsula was annexed by Russia in 2014. In two breakaway territories of Georgia, Abkhazia and South Ossetia, passportisation was rampant especially around 2002 (see the analysis in: Independent International Fact-Finding Mission on the Conflict in Georgia, Report (“Tagliavini Report”), vol. II, Chapter 3). Russia also offers easy Russian nationality to inhabitants of Transnistria (in Moldowa).

This two part-blogpost shows that the Russian “passportisation” policy (i.e. the policy of conferring Russian nationality en masse to persons residing outside Russia) is in many respects exorbitant and risks to violate various principles of international law. Part One examines the governing principles, Part Two balances these principles, applies them to the current case, and examines the legal consequences of  exorbitant naturalisations.  Read the rest of this entry…

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Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 

The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

 

FAO Secretary General Elections – Part 2: What is to be Done?

Published on May 7, 2019        Author: 

In this second post, I want to provide some more details about how the budget works within the FAO. My purpose is to highlight how the majority of Member nations wield political power, while top donors wield financial power.

Today, to win the FAO, is to gain the authority to define the right to food and to significantly influence, if not determine, the right to food’s ability to change the world food regime. Lately, however, the FAO has not invested enough into the right to food for it to even appear as a line item in its budget. Instead, it is buried in a way that is difficult for the public to determine how much is actually spent on the right to food.

The FAO broke new ground in 2004 with the publication of the Right to Food Guidelines. But the work seems to have stopped there. If the right to food is not constantly contested, redefined and operationalized as the world changes, it loses its relevance. In the last two decades, the right to food was re-empowered as a political tool wielded from below by the transnational peasant movements, Indigenous peoples, fisherfolk, pastoralists, and others who overcame their differences to form the food sovereignty movement. But in important spaces such as Committee on World Food Security it remains unclear what role the right to food will play in world’s future food regime. If the FAO continues to disinvest from the right to food, this tool will be blunted from above.

With these normative stakes in mind, I think the political question surrounding the FAO should be: what would a right-to-food budget look like? More specifically: how can the world’s most food insecure have more control over the FAO’s budget? Read the rest of this entry…

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ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals

Published on May 6, 2019        Author: 

The Appeals Chamber of the International Criminal Court (ICC) has, this morning, issued what seems to be an extremely controversial decision on Head of State Immunity. At the time of writing, the full written judgment is not yet available in the appeal by Jordan against the decision of the Pre-Trial Chamber referring that state to the UN Security Council for failing to arrest then President of Sudan, Omar Al Bashir when he attended an Arab League Summit in March 2017.  However, in the oral and written summary of the judgment, delivered this morning by the President of the Court, Judge Chile Eboe-Osuji, the Appeals Chamber appears to have held that under customary international law, heads of state have no immunity from criminal prosecution international criminal courts. The provision in Article 27(2) of the ICC Statute that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person” , according to the summary of the judgment:

“represents more than a stipulation in treaty law. The provision also reflects the status of customary international law, as it concerns the jurisdiction that an international criminal court is properly entitled to exercise.”

In so holding, the Appeals Chamber, once again changes the basis on which the ICC has held that the Sudanese (now former) President was not immune from the arrest in ICC states parties that he visited (for a quick overview of the Court’s previous inconsistent decisions, see this AJIL Unbound piece). Indeed the Appeals Chamber appears to explicitly endorse the much criticised decision of Pre-Trial chamber I in the Malawi Decision. The Summary states that:

“39. In this regard, the Appeals Chamber is fully satisfied that the pronouncements made by the Pre-Trial Chamber I in the Malawi Referral Decision — and those made by the Appeals Chamber of the Special Court for Sierra Leone in the case of Charles Taylor (who was indicted before that international court when he was the sitting President of Liberia) — have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of proper jurisdiction. 
40. The effect of absence of a rule of customary law recognising Head of State immunity, in relation to international courts, is not readily avoided through the backdoor: by asserting immunity that operates in the horizontal relationship between States, in a manner that would effectively bar an international court from exercising its jurisdiction over the person whose arrest and surrender it has requested. The law does not readily condone something to be done through the backdoor, if the law has forbidden the thing to be done through the front door.”

This is stunning and appears to be deeply misguided. It is also, in my opinion, a very dangerous and unwise move for the Court to make. This reasoning appears to assert that parties to the Rome Statute, have, by creating the Court, taken away the rights of non-party states under international law. Dangerous because this reasoning is likely to stiffen opposition to the Court by non-parties. The John Bolton’s of this world and many people far more reasonable will point to this ruling to set out precisely why it is important to oppose this court and other international criminal courts. As I stated here many years ago, the Malawi decision was a terrible one.  It was very poorly reasoned and roundly criticised by others as well (see Bill Schabas and Dov Jacobs). It is extremely disappointing to see it resurrected. Not least because the issue of the immunity of heads of state before international criminal courts is not what is at issue in these cases. What was is at issue is the immunity of heads of states from arrest by other states acting at the request of an international criminal court. That the head of state may not have immunity before the international criminal court does not, without more, say anything about whether he or she may have immunity before a foreign state.

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FAO Secretary General Elections – Part 1: What is at Stake?

Published on May 6, 2019        Author: 

The FAO Member Nations are set to elect a new Director General this 22-29 June. The four candidates, nominated by UN Member States, are Qu Dongyu (China), Catherine Geslain-Lanéelle (France), Davit Kirvalidze (Georgia), and Ramesh Chand (India). Social movements, Indigenous peoples, and NGOs are frustrated because they do not have an opportunity to directly interact with the candidates and engage in a conversation about expectations and plans. They have started a campaign around the hashtag #AskFAO to encourage people from around the world to publicly engage in the process. The implicit purpose is to put pressure on the FAO to make the Secretary General more accountable to the people they serve.

Since the 1990s, a very popular way to engage in questions of democracy and international institutions has been through the language of legitimacy. In these terms, political questions become something you measure as a matter of normative theory, sociological fact, or political reality. This emphasis on measuring makes legitimacy a passive idea. Even when people attack international institutions for being illegitimate or defend it as legitimate, this is still a muddled politics. These argument are often opaque because they rely on a principle that remains implicit and avoids debating the stakes in clearer terms such as power, status, and wealth (but here is a wonderful exception to that generalization).

I want to instead rely on the language of authority and treat the FAO as something someone may want to politically win in order to wield power. In this post I examine what is at stake in the Secretary General elections. In my second blog post I touch upon what is to be done more as an introductory outline than a detailed plan.

My thinking is informed by a very basic notion of fairness: the more vulnerable you are, the more you should be politically empowered. An exemplary Secretary General has to figure out how the FAO can empower all people living with hunger, famine, and starvation. Read the rest of this entry…

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Announcements: Utrecht Summer Schools on International Law; Liverpool Workshop on Co-operation with the ECHR; CfP Law of the Blue Economy – International and South Asian Perspectives; CfP International Law Weekend 2019; UN Audiovisual Library of International Law

Published on May 5, 2019        Author: 

1. Utrecht University Law School  Summer Schools on International Law. This summer, Utrecht University Law School offers three Summer School courses on international law. Everyone is welcome to register for these Summer Schools. The Public International Law course will look at the role of international law in responding to today’s global challenges. In the Law of the Sea course, an introduction is provided to the law that regulates the oceans. And in the Law and Sustainability course, students will learn how issues of sustainability are dealt with in the legal order at the international, national and EU levels. The three courses are coordinated by Otto Spijkers. For more information you can contact him at o.spijkers {at} uu(.)nl.

2. University of Liverpool School of Law and Social Justice Workshop on Co-operation with the ECHR. The International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice is organising a two-day workshop on loyal co-operation with the system of the European Convention on Human Rights (ECHR), and the means of reaction by the European Court of Human Rights (ECtHR) when its judgments trigger discontent. Judges of the ECtHR, officials of the Council of Europe, young as well as established academics will discuss various aspects of interactions between states and the Strasbourg system of human rights protection. The programme is available here. A limited number of visitors can register here

3. Call for Papers: The Law of the Blue Economy – International and South Asian Perspectives. The South Asia International Economic Law Network (SAIELN) is pleased to announce a call for papers for its biennial conference on “The Law of the Blue Economy: International and South Asian Perspectives”. The network is a freestanding body associated with the Society of International Economic Law (SIEL) and other IEL groups. The conference shall take place on 27 – 28 July 2019 in Thiruvananthapuram, Kerala, India. We welcome proposals of panels, posters and papers on topics related to the conference theme. An abstract of no more than 500 words should be submitted no later than 15 May 2019. The results shall be announced by 20 May 2019. The shortlisted participants are expected to submit the final papers (6000 – 8000 words) by 15 July 2019. For more details and submission procedure, see here and hereRead the rest of this entry…

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