Earlier this month, the Parliamentary Assembly of the Council of Europe elected two new Judges to the European Court of Human Rights (ECHR). I am delighted to report that Linos-Alexander Sicilianos, a fellow member of the Scientific Advisory Board of the European Journal of International Law has been elected to take up the Greek seat on the Court (from May 2011). Professor Sicilianos is currently an Associate Professor of Law at the University of Athens and Vice Chairman of the Greek National Commission on Human Rights. He has been Vice Chair of the UN Committee of the Elimination of Racial Discrimination. Our congratulations to Alexander! Professor Sicilianos is the second member of the EJIL Scientific Advisory Board to be elevated to high judicial office this year. Earlier in the year Prof. Andreas Paulus was appointed to the German Constitutional Court.

The other judge elected to the ECHR is Ms Julia Laffranque who will take up the Estonian seat on the Court. She is currently a Judge on the Estonian Supreme Court and an Associate Professor of European Law at the University of Tartu. Our congratulations also go to her!

Yesterday Geoffrey Robertson QC responded to two earlier posts of mine (see here and here) in which I discussed the statehood of the Vatican and the question whether the Pope was immune from arrest (as a head of State) during his recent visit to the UK. His response was posted as a comment to my post but given its significance I have decided to post his comment in full.

I am surprised that Dapo should critique my views on Vatican statehood without reading them. Had he done so – they are set out in my book “The Case of the Pope – Vatican Accountability for Human Rights Abuse” – he would have recognised that much more common ground exists between us than he thinks, especially over the difficulty under the chapeau of Article 7 of the Rome Statute as a result of those meddlesome “Elements of Crime”.

Dapo’s statement that “it is not apparent if the Vatican were simply an NGO it would be less influential in treaty drafting than the Vatican state” is demonstrable incorrect. It is apparent, indeed flagrant, to anyone familiar with the UN and its NGO system, and the evidence is set out in Chapter 6 of my book. NGOs would kill, so to speak, to have the influence vouchsafed to the Vatican as a non-member state.

I was unimpressed by Dapo’s snigger over my statement that “some international lawyers had pointed out that it [the Vatican] lacks people, territory and other qualifications necessary to be judged objectively as a state in international law”. Ironically, his implication that this was incorrect and that “leading international lawyers” believe that the Vatican fulfils the criteria was refuted by letter to the Times on the very day of his posting, by Anthony Aust. Although not an academic (is this Dapo’s criteria for becoming a “leading international lawyer”?) Aust spent 35 years as a legal advisor at the Foreign and Commonwealth Office and is author of Modern Treaty Law and Practice (2000) and Handbook of International Law (CUP, 2005), second edition forthcoming. Aust wrote:

“Is the Vatican a State?

Sir, It is wrong for the United Kingdom to continue to recognise the Vatican as a state, have an ambassador to the Vatican, and accord the Pope a visit as a Head of State. This is irrespective of whether it is good or bad. The Vatican is a tiny area (110 acres) with a resident population of some 800 whose main purpose is to support the Holy See. The Vatican is not a member of the United Nations. It may be seen best for what it really is: a small part of Italy devoted to proselytising Roman Catholicism, which is an important religion but no more than that.”

As for academics, I’m afraid that Dapo has not done his homework. My New Statesman comment is amply supported by the list I give in para 132 of my book: (more…)

Last month the new Chinese Judge at the International Court of Justice (ICJ), Judge Xue Hanqin, was sworn in and took her seat on the ICJ bench. One remarkable but perhaps little known fact about Judge Hanqin is that she is the only person ever to have presented oral argument on behalf of the People’s Republic of China in an ICJ case. She was counsel for China in the recent Kosovo advisory proceedings and appeared before the Court in the oral hearings held in December 2009 (see here). That was a significant moment  for international law as it was the first time that the People’s Republic of China had chosen to take part in ICJ proceedings. Moreover, it may be that the moment is part of a shift in China’s attitude towards international tribunals. This year, China also chose to take part in the first ever advisory proceedings before the International Tribunal for the Law of the Sea (ITLOS). In the proceedings before ITLOS regarding the   Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area , China submitted a written statement and argued that the Court ought to exercise its jurisdiction in the proceedings. 

Since the communist takeover of China, the country has not been particularly enthusiastic about submitting itself and/or disputes involving it to the jurisdiction of international tribunals. This coolness even extended to advisory opinions. The Republic of China (under the previous nationalist government)  had submitted written statements to the Court in the first two advisory proceedings before the International Court of Justice (the Conditions for Admission Case 1948 and the Reparations for Injuries case 1949) though it did not take part in the oral hearings. But we now see a change at least with respect to advisory opinions. It is not clear why the Chinese government decided to appear before the ICJ in the Kosovo advisory proceedings. (more…)

As reported here, this summer the UK’s inquiry into the Iraq War (the Chilcott Inquiry) invited submissions analysing the arguments relied on by the UK government as the legal basis for the war. The deadline for making those submissions was extended from July to September 13. The inquiry reserved the right to publish submissions made to it. However, it is now nearly 3 weeks since that deadline passed and the Inquiry has not yet published any of the submissions. The other evidence given to the committee of inquiry is available on its website and one important contribution of the inquiry is the declassification and release of many documents which were previously confidential. As has been discussed on this blog before (see  here here, and here) many of those documents give fascinating insight into the process by which the government sought and received legal advice relating to the use of force. It would be anamalous if the inquiry fails to publish evidence received from international lawyers on this critical issue  and I suspect that they will be published in some form at some point.

An article in the Guardian newspaper yesterday states that over 30 submissions were received by the inquiry on the legal arguments. The article (“Blair’s case for Iraq invasion was self-serving, lawyers tell Chilcot inquiry”) begins by stating that:

“The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.

A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process . . .”

The article quotes from submissions made by Ralph Zacklin (former UN Assistant-Secretary General for  Legal Affairs), by Philippe Sands and from submissions drafted by Marko Milanovic and I. The submission drafted by Marko and I was signed by 23 international lawyers from academia and private practice. The full text of that submission can be found below the fold. (UPDATE: You can find all three submissions referred to on the Guardian website here)

Given that the Inquiry made it clear that submissions were to be restricted to 3000 words we had to make choices as to the issues we wished to comment on. We decided not to attempt to revisit in full the against the use of force but did make the argument the argument put forward by the US and UK regarding the revival of previously given authorizations to use force undermines the UN collective security system. Our main focus, however, was on the arguments put forward by Lord Goldsmith (in his testimony to the committee) to justify the change in his legal advice. In our view, those arguments, even assuming that the UK’s revival argument was valid, UN Security Council Resolution 1441 would fail to satisfy that argument. In thinking that it did, Lord Goldsmith was moving from the UK’s revival argument to the US’ version of the argument which (as Lord Goldsmith himself accepted) was fundamentally different from the UK’s and which had been regarded even by the UK as an untenable legal position. (more…)

The International Tribunal for the Law of the Sea (ITLOS), which is based in Hamburg, is holding hearings this week in  advisory proceedings before that Tribunal. The case concerns Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area  and the request for the advisory opinion was submitted to the Seabed Disputes Chamber of ITLOS by the International Seabed Authority. The request represents the first advisory proceedings before ITLOS and the first case before the Seabed Disputes Chamber. The oral proceedings are the first before ITLOS in 3 years (the last being in 2007 and the last one before that was in 2004)!

In 1991, Keith Highet who argued many cases before the International Court of Justice wrote a brief comment in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) noting how the ICJ had become busier than ever in the years immediately following the Court’s judgment in Nicaragua case. The title of this piece is adapted from his piece (The Peace Palace Heats Up: The World Court in Business Again?). The situation that in ITLOS today is no where near the same as that in the ICJ in the early 1990s but I simply wish to note that having been in the doldrums for much of its existence since it was set up in 1996. The Tribunal was created by the UN Convention on the Law of the Sea (UNCLOS) as one (of a number of means) of settling disputes under the UNCLOS. Except in one respect, it has not received much attention from potential users and very few cases have been referred to it. However, at this point in time there are 2 cases on the docket of ITLOS!! Apart from the advisory proceedings there is also a contentious case on its docket. This is the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal submitted to the tribunal in December 2009. Two cases is not much cause for celebration but these are two cases received less than 6 months apart. Is the Tribunal now in business?

Apart from requests for provisional measures and request for prompt release of vessels (the latter is the one respect in which ITLOS has received some attention from users), ITLOS has only previously had one case submitted to it on the merits. This was the Saiga Case (St Vincent and the Grenadines v. Guinea) submitted to ITLOS in 1998. I had just started out as a full time academic at the University of Nottingham and I acted as an adviser and assistant to Richard Plender QC who was counsel to St Vincent. I was involved in drafting some of the submissions to the tribunal and never imagined that ITLOS would not hold oral hearings on the merits of a dispute for another decade!  In that time, there has been no shortage of law of the sea disputes.

The dispute settlement provisions of UNCLOS (Part XV) provides for compulsory adjudication but gives parties a choice of procedures. The default choice (i.e the option to be pursued where no specific choice is made or where parties have chosen different procedures) is international abitration but parties may also use the International Court of Justice or ITLOS. Although more States have chosen ITLOS than any other option, States have refrained from referring  law of the sea disputes to ITLOS. I think that there have been 6 arbitrations initiated under UNCLOS, including an arbitration between Bangladesh and India initiated at the same time as the ITLOS proceedings before Bangladesh and Myanmar. There have also law of the sea cases before the ICJ in the period since ITLOS was created. Failure to refer cases to ITLOS suggests that States perceive disadvantages with that Tribunal when compared with the alternatives. Perhaps its biggest disadvantage is that it is untried and untested. States have some idea what they will get with the ICJ. With arbitration states pick the arbitrators and have some control over the process and this may give some comfort to States. Whether ITLOS continues to generate business might well depend on how it is perceived as performing in the 2 cases currently on its docket.

The Pope will begin a State visit to the UK on Thursday Sept 16. In anticipation of this event, some are using the occasion to highlight the tragedy concerning the sexual abuse of children by catholic priests around the world and the failure of the catholic church to deal with this scandal appropriately. As was discussed on this blog earlier this year there were calls for the Pope to be arrested on his visit to Britain and to be tried at the International Criminal Court for crimes against humanity. As Marko and I pointed out the time, there are two significant obstacles to such a prosecution: (i) the Pope is a serving head of State with immunity from arrest and prosecution in other States (see my earlier post) ; and (ii) it would be difficult to argue that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute (see Marko’s post).

Those leading the charge in the calls for the prosecution of the Pope and in the more general campaign against the Papal visit include Geoffrey Robertson QC, a leading English barrister who was a Judge at the Special Court for Sierra Leone and Oxford Professor Richard Dawkins. A central part of that campaign is now a call for non-recognition of the Statehood of the Vatican. It seems that this non-recognition is regarded by the campaigners as important at two levels.

First of all, if the Vatican is not regarded as a State then both the Vatican and the Pope will be open to proceedings in national courts around the world. This is becaue both the Pope and the Vatican will lose the immunity international law accords to States and their serving heads of State. Geoffrey Roberston is the champion of this strategy. He has a recent article in the New Statesman in which he continues to argue against the Statehood of the Vatican. While reognising the widespread international recognition of the Vatican he says:

“that the Holy See is capable of having diplomatic relations with other states does not necessarily prove that it is a state itself, andsome international lawyers have pointed out that it lacks people, territory and other qualifications necessary to be judged objectively as a state in international law. If they are right, the Pope would not be “head” of a state and could be sued for the negligence in relation to the traffic in paedophile priests, which happened on his watch over the 24 years when he ran the CDF.”

I don’t know which international lawyers he is referring to but Robertson’s arguments about how Statehood is created are erroneous. The Vatican fulfills the criteria for Statehood in international law (despite its tiny size) and this is the view of leading international lawyers. I refer readers back to my earlier post where I deal with the arguments.

Dawkins appears to have taken a different tack. He no longer argues that the Vatican is not a State but now seems to argue that the Vatican should be derecognised and its Statehood somehow taken away. (more…)

The United Nations General Assembly and Security Council has elected Joan Donoghue, from the United States, to the International Court of Justice (ICJ) (see here). Joan Donoghue will replace Thomas Buergenthal who resigned from the Court with effect from last week. Ms Donoghue is currently Principal Deputy Legal Adviser at the United States’ State Department and has spent most of her career working for the US government. As previously discussed on the blog, Ms Donoghue’s election to the ICJ means that there are now (for the first time) two women judges on the Court with Xue Hanqin of China elected to the Court in June. Both women will take the oath of office next Monday prior to the commencement of oral hearings in the preliminary objections phase of the Georgia v. Russia (Application of the Int. Convention on the Elimination of Racial Discrimination Case).

The United Nations Secretary General has recently submitted a report to the Security Council in which he sets out 7 options for dealing with piracy off the coast of Somalia. The incidence of piracy off the coast of Somalia continues to be very high.

“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . .  There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .

8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”

In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.

The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and  domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.   

The BBC reports that a number of European Union States have summoned Kenyan Ambassadors asking them to explain why Kenya failed to arrest Sudanese President Bashir when he visited Kenya last week. The International Criminal Court has issued two warrants for the arrest of President Bashir.

“They emphasized that the UK expects the government of Kenya to stand by its obligations under the Rome Statute, and as a UN member state,” a statement from the British High Commission in Nairobi said.

Should this be regarded as practice relevant for the interpretation of the relevant parts of the Statute of the International Criminal Court (Rome Statute)? Art. 31(3)a of the Vienna Convention on the Law of Treaties provides that in the interpretation of a treaty the interpreter shall take into account “subsequent practice in the application of the treaty”. Is the act of European countries with regard to Kenya and Bashir subsequent practice indicating the lack of immunity of Bashir though he is a sitting head of State? I think it is but one would have to set against it the practice of African States which seems to be the opposite. For subsequent practice to count under Art. 31 it must “establish the agreement of the parties regarding [the treaty's] interpretation.”

Sudanese President Omar Bashir visited Kenya yesterday to take part in the celebration of the new Kenyan Constitution. As readers will know, the International Criminal Court (ICC) has issued two arrest warrants for President Bashir in connnection with charges of war crimes, crimes against humanity and genocide. President Bashir’s visit to Kenya is his second visit to an ICC State party. Last month Bashir visited Chad which is also a party to the ICC Statute. Both Kenya and Chad invited Bashir and both refused to comply with the ICC arrest warrants which request State parties to arrest and surrender Bashir. ICC Pre Trial Chamber I, which issued the arrest warrants, issued decisions (see here and here)  yesterday informing the United Nations Security Council and the ICC Assembly of State Parties of the visits by Bashir “in order for them to take any measure they may deem appropriate”. In the ICC decision regarding Kenya, the Chamber stated that:

“the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party” [The decision with respect to Chad has a similar paragraph except that, interestingly, that decision only states that Chad has an obligation to cooperate - with the word "clear" being omitted from the first line of the paragraph.]

ICC judges have to take a large share of the blame for this situation. Despite the assertion that Kenya has a clear obligation to arrest President Bashir, the matter is by no means clear. As is well known, a decent argument can be made that Bashir, being a serving head of State is immune from arrest in other States (see the article by Professor Paola Gaeta which makes this case). I have argued the opposite in an article I wrote last year (see this post which refers to both articles). Despite very reasonable doubts and despite the importance of the issue, ICC judges in the Appeals and Pre-trial Chamber have refused to address the immunity question and to clarify matters (see previous post). (more…)