The International Court of Justice this morning rendered its judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (judgment; case materials). As widely expected, Germany won, and won hands down. On the main issue of jurisdictional immunity the Court decided in Germany’s favour by 12 votes to 3 (Judges Cancado Trinidade and Yusuf and Judge ad hoc Gaja dissenting; UPDATE: having skimmed the dissents, it seems that only Judge Cancado Trinidade relied on the jus cogens immunity override theory). On all other claims – immunity from enforcement, jurisdictional immunity in exequatur proceedings and reparation – the Court decided in favour of Germany by 14 votes to 1 (only Judge Cancado Trinidade dissenting). So there’s been no serious split in the Court, to the eternal regret of this year’s Jessup competitors, to whom I extend my sympathies. As is now customary, Judge Cancado Trinidade appended a jolly 88-page dissent, almost twice as long as the Court’s judgment (for what it’s worth, my sympathies equally extend to his clerks). Several other judges appended declarations or separate opinions, but less than could perhaps have been expected – again, the Court was fairly unified.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

Christian Tams sends along the following announcement.

Frankfurt Investment Law Workshop 2012 – Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations? (16-17 March 2012)

For a couple of years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. Following previous events assessing the relationship between Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (see here) and International Investment Law and Its Others (forthcoming 2012), this year’s workshop will explore the growing network of preferential trade and investment agreements (PTIAs) and assess their impact on ordering international investment relations. It will be held in Frankfurt/Main on 16-17 March 2012, immediately following the Frankfurt Investment Arbitration Moot.

The workshop will open with a keynote speech by Professor Raúl Emilio Vinuesa. This is to be followed by panels addressing the interaction between PTIAs and traditional BITs; the impact of PTIAs on the Trade/Investment divide; and the role of regionalism and multilateralism in international investment law.

The event is designed to be a forum for discussion and much room is allocated to debate. Anyone interested in participating should contact Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (S.Schimpf {at} jur.uni-frankfurt(.)de) by 28 February 2012.

Yep, you read that right. On Friday this week the ICJ will be handing down its much anticipated judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case, dealing with the whole Ferrini and Distomo immunity saga. Coincidentally, that same saga forms a large chunk of this year’s Jessup moot court competition, with hundreds of law students around the globe having toiled away at their memorials over the past few months and now busily preparing themselves for the national and international oral rounds of the competition (the latter taking place in the last week of March in Washington, DC). The compromis this year is a rather good one (read it here), dealing not just with immunities but also with the legitimacy of governments, attribution of conduct to international organizations, use of force, etc. All the more pity the ICJ is now poised to throw a wrench in it – judicial comity regrettably does not seem to extend to its pretend counterparts around the globe. I can just imagine the pain of all those students who will be forced to ‘distinguish’ the Court’s freshly-minted judgment in their oral pleadings (Germany is widely expected to win the case, but of course who knows). Bad karma for everybody involved. But the poor students mights still have their revenge, as the Court’s website may well crash from the Jessup hordes trying to access the live video feed and/or the judgment on Friday… Happy times.

(On a slightly more serious note, we’ll try to have commentary on the judgment as soon as possible).

I am happy to announce that EJIL: Talk! will be joined by Douglas Guilfoyle (UCL), Joanna Harrington (Alberta), and Michael Waibel (Cambridge) as permanent contributors. All three are of course well-known to our readers both for their scholarship and their posts on this blog. Other authors will be joining our roster of permanent contributors in the year to come. We will also be improving the functionality of the website, on which more soon. For now, however, please join me in welcoming Douglas, Joanna, and Michael – we await their contributions with much anticipation!

The deadline for the submission of abstracts is approaching for the Conference on “Security and International Law” (Nottingham, 20-21 April 2012) and Pre-Conference MPhil/PhD Workshop on research methods in public and private international law (Nottingham, 19 April 2012).

The International Law Association (ILA) British Branch invites submissions for papers for its Annual Spring Conference on “Security and International Law”, which will be hosted by the University of Nottingham School of Law from 20-21 April 2012.  The theme of the conference is open to broad interpretation in terms of human, political, military, socio-economic, environmental and energy security as well as security issues arising from the operation of international law in territorial and extra-terrritorial spaces, such as the high seas, aerospace, or the Internet. Full details of the Call for Papers are available here. Details of the Pre-Conference MPhil/PhD Workshop are listed in the Call for Papers in the same document.

Submissions for the Annual Spring Conference should be received by 31 January 2012 and expressions of interest for the Pre-Conference by 1 February 2012.

I’ve reported in November that in October Judge Al-Khasawneh of the ICJ was appointed Prime Minister of Jordan. I’ve noted how, oddly enough, the ICJ website made no mention of this nor of any resignation by Judge Al-Khasawneh from the Court, even though his new position was clearly incompatible with the judicial function. The ICJ has now issued a press release confirming Judge Al-Khasawneh’s resignation, some three months after his prime-minisiterial appointment. I doubt that this was due to any tardiness by the Court’s press officers: note how the press release says that Judge Al-Khasawneh resigned, but does not say when exactly he resigned, which is again somewhat odd. The Security Council has fixed 27 April as the date for the election of Judge Al-Khasawneh’s replacement, who will complete his term until 2018.

My friend Vidan Hadzi-Vidanovic and I just finished an article on the classification of armed conflicts in modern IHL, which is forthcoming in a book collection edited by Christian Henderson and Nigel White. The draft is available here on SSRN, and the abstract is below. Particularly because the piece draws upon many discussions we have had on this blog, any comments would be most welcome.

With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts.

The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.

The US Government recently submitted to the Human Rights Committee its fourth periodic report on its compliance with the ICCPR. On the issues near and dear to my heart – the extraterritorial application of the ICCPR and the relationship between IHRL and IHL – the new report presents a significant softening of the US position. Or, to be more precise, the report leaves the door open for a shift in the US position in the relatively near future (assuming, I imagine, that Obama manages to win re-election). Thus, paras. 504-505 of the report on extraterritoriality summarize the previous US position and those of the HRC and the ICJ, but do not contest the latter.  Paras. 506-507 on IHL are a bit more meaningful, and bear quoting in full:

506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.

507. More complex issues arise with respect to the relevant body of law that determines whether a State’s actions in the actual conduct of an armed conflict comport with international law. Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as in the customary international law of armed conflict. In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections. For example prohibitions on torture and cruel treatment exist in both, and the drafters in each area have drawn from the other in developing aspects of new instruments; the Commentaries to Additional Protocol II to the Geneva Conventions make clear that a number of provisions in the Protocol were modeled on comparable provisions in the ICCPR. Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

Note how the US report has now started using the customary buzzwords of the IHL/IHRL project (‘complementary’, ‘mutually reinforcing’), while at the same time presenting its lex specialis argument in less drastic terms than before. The last sentence of para. 507 is particularly noteworthy, as the US now argues that the relationship between the two bodies of law requires a fact-specific determination in any given case, rather than just treating IHL as displacing IHRL wholesale, while it leaves room for complementary application particularly in times of internal armed conflict. (Note the construction ‘non-international armed conflicts occurring within a State’s own territory’, which is presumably meant to exclude cross-border NIACs of the sort that the US claims it is engaged in with Al-Qaeda).

We’ll see whether the US position will continute to evolve – but there is some reason here for optimism. The reference to lex specialis is still unfortunate, in my view, as that pithy Latin phrase has very little to teach on the interaction between norms (see more here, and in a more updated form in the last chapter of my book). In that regard, readers might also be interested in the debate between Gabor Rona and Jens Ohlin at Opinio Juris and Jens’ new blog, the LieberCode.

5 & 6 October 2012

Complexo Pedagogico, Universidade Eduardo Mondlane,

Maputo, Mozambique

THE QUEST FOR hUMAN SECURITY, PEACE AND DEVELOPMENT: CHALLENGES AND RESPONSES

BACKGROUND AND AIM OF THE CONFERENCE

In anticipation of the 50^th anniversary of the creation of the Organisation of African Unity (OAU) in 2013:

• the African Foundation of International Law (AFIL)
• the Centre for Human Rights, University of Pretoria, South Africa
• the Institute for International and Comparative Law in Africa (ICLA), University of Pretoria, South Africa
• Faculdade de Direito, Universidade Eduardo Mondlane, Mozambique

are pleased to announce a two-day conference on international law in Africa and invite proposals for papers.

This conference aims to provide a forum for reflection on the pan-African organisation in the specific context of human security, peace and development in Africa, and how the OAU/AU has responded to challenges in these areas.

(more…)

Just a quick reminder to our readers that the deadline for the submission of abstracts under the call for papers for this year’s conference of the European Society of International Law in Valencia is 20 January. The conference homepage is here.