magnify
Home 2019 July (Page 3)

Deep Seabed Mining in the Area: is international investment law relevant?

Published on July 10, 2019        Author: 

The last decade has seen a renewed interest in the commercial exploitation of deep seabed minerals located beyond national jurisdiction. However, the respective responsibilities of deep sea miners and of their sponsoring states in this process have not been clarified fully. This short piece argues that international investment law is part of the legal framework applicable to the relationship between the deep sea miner and the state sponsoring it. More specifically, it attempts to demonstrate that deep sea mining operations can constitute a foreign-owned investment within the territory of a host state. Thus, when accepting to sponsor deep sea mining activities, states need to be mindful of the additional disciplines imposed by international investment law. 

The seabed beyond national jurisdiction (named as the “Area” by UNCLOS) is known to contain valuable mineral resources including copper, nickel, zinc and rare earth metals which have become particularly valuable because of recent technological innovations. The International Seabed Authority has awarded twenty-nine exploration contracts to a variety of state and private corporate bodies for vast zones in the Pacific and Indian Oceans. Foreign capital has become increasingly involved in this economic activity. Thus, Nauru Ocean Resources, a Nauruan entity which was granted an exploration contract in 2011, is a subsidiary of the Australian corporation Deepgreen Mineral Corp. UK Seabed Mineral Resources is a subsidiary of the well-known Lockheed Martin. However these activities are controversial and there exist glaring gaps in the scientific knowledge of the ecosystems where deep sea mining is supposed to take place. Read the rest of this entry…

 
Comments Off on Deep Seabed Mining in the Area: is international investment law relevant?

Sovereignty has “Rock-all” to do with it… or has it? What’s at stake in the recent diplomatic spat between Scotland and Ireland?

Published on July 8, 2019        Author: 

Rockall, the tiny, remote, rocky outcrop in the northeast Atlantic – a ghostly peak of an extinct volcano – has periodically appeared in the news at the centre of a longstanding dispute between the UK and Ireland (as well as, more peripherally, Denmark (Faroe Islands) and Iceland too). This dispute has rarely flared up publicly over recent years, as it has largely been subsumed as part of ongoing, unresolved negotiations surrounding extended continental shelf claims of the four states concerned. However, earlier this month, the Scottish government threatened enforcement action against Irish vessels which it claimed were illegally fishing within Scottish territorial waters surrounding Rockall. Ireland immediately responded to this threat by denying Scotland’s right to take any such action. It seemingly based its position on (i) a rejection of UK sovereignty over the islet and, (ii) the argument that such sovereignty (even if it existed) over uninhabited ‘rocks’ like Rockall was irrelevant for the UK’s claimed maritime entitlement. Although any enforcement action has yet to take place, the underlying diplomatic feud appears not to be going away any time soon. Indeed, following a meeting on Friday 28 June between the Irish Prime Minister (the Taoiseach) and Scottish First Minister, there has been an agreement to intensify discussions in light of the diplomatic impasse.

The Scottish position is perhaps explicable in a pre-Brexit (and pro-independence) political climate, where sovereign rights over natural resources will play a critical part – a theme I briefly return to at the end of this post. However, Ireland’s counterargument appears to be built on a misapprehension of the applicable law, both over territory and associated maritime rights. The real issue would appear to lie in the permissibility of fishing – including potentially acquired customary rights to do so – in the context of EU Common Fisheries Policy rules. In this short post I want to clarify the legal position on sovereignty and associated maritime rights, before turning to the arguably more complicated issue of fishing rights specifically. Before doing so, for those not already familiar, a brief introduction to Rockall is necessary. Read the rest of this entry…

 

Announcements: CfP German Yearbook of International Law; Rosalyn Higgins Prize

Published on July 7, 2019        Author: 

1. Call for Papers, Volume 62 (2019) German Yearbook of International Law (GYIL) – Reminder. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing all aspects of public international law. The Editors are pleased to call for contributions to the “General Articles” section of Volume 62 (2019) of the GYIL. Prior to publication, all manuscripts are independently peer-reviewed by a board of renowned experts. Submissions from all areas of public international law are welcome. The paper should be 10,000-12,500 words, inclusive of footnotes, and conform with the house style of the GYIL (which is available on our website). Submissions, including a brief abstract, statement of affiliation, and confirmation of exclusive submission, should be sent by 1 September 2019 to the Assistant Editor of the GYIL via e-mail: yearbook {at} wsi.uni-kiel(.)de.

2. Rosalyn Higgins Prize – Reminder. The Law & Practice of International Courts and Tribunals now invites submissions for the Rosalyn Higgins Prize. In light of her outstanding and inspiring achievements in the field of international dispute settlement, the Law & Practice of International Courts and Tribunals (LPICT) has named a Prize in honour of H.E. Rosalyn Higgins. The Rosalyn Higgins Prize is an annual prize which awards EUR 1.000 of Brill book vouchers and a LPICT subscription to the author of the best article on the law and practice of the International Court of Justice, either solely focusing on the ICJ or with the ICJ as one of the dispute settlement mechanisms under consideration. The winning article will also be published in LPICT and made freely available online to maximize its dissemination. Competition for the Prize is open to all. Submissions will be selected via a double-blind peer review process by a Prize Committee. Submissions should be between 6.500 and 8.000 words in length, not yet published or under review elsewhere. Other submission requirements are the same as for regular LPICT submissions (instructions available here). Submissions now open! Deadline: 31 August 2019. All papers for consideration of the 2019 prize should be sent directly to Pierre Bodeau-Livinec (bodeaulivinec {at} gmail(.)com ) and Freya Baetens (freya.baetens {at} jus.uio(.)no), LPICT Co-Editors-in-Chief. The winner(s) will be announced in September 2019.

Filed under: Announcements and Events
 
Comments Off on Announcements: CfP German Yearbook of International Law; Rosalyn Higgins Prize

Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Published on July 4, 2019        Author:  and

In the recent judgment of the European Court of Human Rights (the Court) in Ilgar Mammadov v Azerbaijan  (Mammadov 46(4)) examined under Article 46(4) infringement proceedings, the Grand Chamber found that Azerbaijan had failed to comply with the Court’s original judgment in Ilgar Mammadov (Mammadov No.1) by refusing to release political activist Ilgar Mammadov, who was arrested on politically motivated charges (in violation of a right to liberty and security under Articles 5 and the  prohibition to restrict rights for purposes other than those prescribed by the Convention under Article 18 of the Convention).

This case is not only novel in being the first to be considered under infringement proceedings (see blogs by Başak Çali and Kanstantsin Dzehtsiarou), but is also highly significant for the Court’s approach to the implications of politically motivated proceedings.  Until now the Court has been reluctant to clarify its position on whether trials and convictions can be explicitly held to be in ‘bad faith’ under Article 18 of the Convention. We argue in this blog that the Grand Chamber in this case (relating to Mr Mammadov’s arrest and pre-trial detention), went substantially further than the Chamber in the second case of the same applicant, Mammadov No. 2 (relating to his trial and conviction), and has paved the way for the Court to finally open the door to the applicability of Article 18 to a right to fair trial under Article 6, or risk incoherence. 

The Court’s approach so far to Article 18

Article 18 of the Convention provides that ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ There is debate about whether the wording of the provision limits its applicability to ‘restricted’ rights under Articles 5 and 8-11 of the Convention (see below). Read the rest of this entry…

 
Comments Off on Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Canada Avoids Indigenous Reconciliation and the UN Declaration on the Rights of Indigenous Peoples

Published on July 3, 2019        Author: 

If you believe that Canada is a country filled with self-effacing and polite people, you may miss the genocidal violence within its borders. First Nations, Inuit, and Métis have always known that the Government of Canada along with the Canadian provincial governments have deliberately implemented and enabled the continuous annihilation of Indigenous peoples. The National Inquiry into Missing and Murdered Indigenous Women and Girls found in its report, released earlier this month, that Indigenous women were 12 times more likely to be killed or to disappear than other women in Canada. The report concluded that this violence is the result of historical and ongoing race-based genocide against Indigenous peoples.

The National Inquiry was commissioned by the Government of Canada in 2015 to launch a public inquiry into the disproportionate levels of violence against Indigenous women and girls. It was the result of long-standing pressure from grassroots family members and survivors, community organizations and national Indigenous organizations, international human rights organizations, and the Truth and Reconciliation Commission of Canada. It took a tragedy in 2014 to lead to a public inquiry: the body of Tina Fontaine, a 15-year-old girl from the Sagkeeng First Nation, was found in the Red River in Winnipeg, Manitoba wrapped in a duvet weighed down with 25 pounds of rocks; when the main murder suspect was acquitted, people across the country were outraged which generated wide-spread calls for an investigation into why Indigenous girls and women were dying at a high rate.

The report’s conclusion was not new news to anyone who understood Canadian politics. What is noteworthy is that Prime Minister Justin Trudeau publicly accepted that Canada has committed and continues to commit genocide. Many citizens and prominent officials in Canada, however, had a visceral reaction against the characterization of the violence as genocidal. It did not match the story that Canadian citizens and government officials tell themselves about Canada as a promoter of international human rights abroad or of what they thought modern genocide looks like.

Never has international law forced Canada to face itself so honestly. Some are arguing that because genocide did not exist as an international crime before the 1948 Geneva Conventions, the colonial violence in Canada’s past may not fall under the gambit of modern international criminal law (here and here) even if they reverberate today. These arguments, however, treat colonialism in Canada as a punctuated historical phenomenon. Read the rest of this entry…

Filed under: Genocide, Indigenous Peoples
 
Tags:

The Limits of the Law: Putting Reparations into Practice

Published on July 2, 2019        Author: , , and

Reparations have recently been the hot topic from its invocation at the US Congress, the Khashoggi killing to WWII claims by Poland and Greece against Germany. Reparations have a particular legal meaning that intends to acknowledge wrongdoing and remedy as far as possible victims’ harm. Private law notions of restitution heavily imbue the concept. Indeed, the seminal case of Chorzów Factory by the Permanent Court of Justice laid the foundations for reparation in international law which ‘must, as far, as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’

In the past three decades we have seen an increase in reparation programmes from the German Compensation Scheme for Forced Labour, the UN Claims Commission, domestic reparation programmes such as Peru to jurisprudential strides of the Inter-American Court of Human Rights and the initial steps by the International Criminal Court. 2020 itself will mark fifteen years since the UN adoption of the Basic Principles for the Right to Remedy and Reparations for Gross Violations of Human Rights and Serious Breaches of International Humanitarian Law that sets the broad international standards for victims and states.

Despite these developments most victims of such violations do not receive reparations. Read the rest of this entry…

 

Misunderstanding of International Aviation Law May be Behind Iran’s Shootdown of the U.S. Global Hawk Drone

Published on July 1, 2019        Author: 

On Thursday, June 20, the Iran Revolutionary Guard Corps Navy (IRGCN) shot down an unarmed U.S. surveillance drone, nearly igniting open conflict between the United States and Iran. The $180 million U.S. Navy RQ-4A Global Hawk was struck by an Iranian Islamic Revolutionary Guard Corps (IRGCN) surface-to-air missile launched from near Goruk, Iran. With strained relations over new U.S. sanctions against the regime and coming after weeks of drama over evidence suggesting Iran was emplacing limpet mines on commercial oil tankers in the Strait of Hormuz, the incident caused President Trump to order – and then to abruptly cancel – strikes against Iranian military facilities. After first promising quick retaliation, President Trump took a step back, stating, “ have a feeling — I may be wrong and I may be right, but I’m right a lot — I have a feeling that it was a mistake made by somebody that shouldn’t have been doing what they did.”

Apparently, the decision to cancel the counterattack was made because U.S. intelligence assessed that the shootdown was made by a local IRGCN commander and was not sanctioned by the regime in Tehran. Intelligence reports suggest that the Iranian regime was “furious” with the wayward commander’s decision to attack the drone, and the U.S. President deescalated the situation.

The U.S. has suffered decades of Iranian violations of the freedom to transit through and above the oceans near Iran. The IRGCN appears as a matter of policy to selectively harass foreign commercial and naval ships conducting lawful transit in the Strait of Hormuz, and in 2016 it unlawfully detained two U.S. small boats and their crews, which were exercising innocent passage in Iranian territorial seas. Yet the recent shootdown of the U.S. drone likely arose from a lack of understanding of international aviation law and Iran’s rights and responsibilities as a party to the 1944 Convention on Civil Aviation (the Chicago Convention) and the rules promulgated by the International Civil Aviation Organization (ICAO).

Read the rest of this entry…