We experienced some technical difficulties yesterday, due to which the blog was inaccessible for the whole day. Our apologies to the readers.

After the excellent recent conference in Cambridge, the next event of the European Society of International Law will be the 4th ESIL Research Forum, to be held on 27-28 May 2011 in Tallinn, Estonia. The call for papers is here. The deadline for the submission of abstracts for the forum’s 15 panels is 15 December 2010, while the selection will be made in January 2011. A further selection of the papers presented will be published in the 2012 issue of the Baltic Yearbook of International Law (Brill/Martinus Nijhoff). A limited number of scholarships to cover travel costs will also be available.

I am sorry to report that Tom Bingham, the former senior law lord, has died Saturday, aged 76. He was on any account the leading judge of his generation – probably, in the words of Philippe Sands writing today in the Guardian, ‘the greatest English judge of the modern era.’ In particular, his contribution to the implementation of human rights and of international law generally in English courts has been immense. He was President and Chairman of the British Institute of International and Comparative Law, and indeed BIICL had recently opened the new Bingham Centre for the Rule of Law. A sad day for our profession.

Our readers, especially those living in The Netherlands, might be interested in attending the forthcoming DOMAC conference in Amsterdam, to be held on 30 September and 1 October. DOMAC is an EU-funded joint project of Reykjavik University, University of Amsterdam, Hebrew University and University College London, and focuses on the actual interaction between national and international courts involved in prosecuting individuals in mass atrocity situations. Readers can find more about it here. The theme of the conference itself is the impact of international criminal procedures on domestic criminal procedures in mass atrocity cases, and the program is available here.

Our readers might be interested in a case note that I have just posted on SSRN on the Sejdic and Finci v. Bosnia and Herzegovina case before the European Court of Human Rights, which I blogged about before. It is forthcoming in the next issue of the American Journal of International Law, and here’s a very brief abstract:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society – discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court’s judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

On his blog, Bill Schabas raises a fascinating issue regarding the territorial scope of application of the Rome Statute of the ICC:

On 11 March 2010, the United Kingdom informed the Secretary-General that it wished that its ratification of the Rome Statute of the International Criminal Court ‘be extended to the following territories for whose international relations the United Kingdom is responsible: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands’. The declaration added that the United Kingdom ‘considers the extension of the aforesaid Statute … to take effect from the date of deposit of this notification…’

The Argentine government then quite quickly objected to the UK declaration, because of their long-standing dispute over the Falklands/Malvinas. This has been the Argentine practice for quite some time (see, e..g, the similar UK and Argentine declarations with regard to the ICCPR (at the very end of the page)). But more interesting, as Bill notes, is the issue of the territorial scope of UK obligations:

Did the United Kingdom leave anything out of its declaration? What about Diego Garcia, which is part of the Chagos Archipelago in the British Indian Ocean Territory. After expelling the inhabitants of the islands, the British then essentially handed over the base to the United States, which uses it as a kind of a fixed aircraft carrier. Is the Diego Garcia military base subject to the Rome Statute because it forms part of the ‘territory’ of the United Kingdom? Or does the recent declaration attempt to confirm that it is not subject to the jurisdiction of the Court, because the United Kingdom has not made a declaration to that effect?
Aside from jurisdiction over territory, there is also the issue of responsibility for arrest and other cooperation obligations under the Rome Statute. By its declaration, was the United Kingdom suggesting that it was not previously responsible for cooperation with the Court with respect to the territories listed in the declaration?

The formulation of the UK’s declaration certainly indicated that hitherto it considered itself bound by the Rome Statute only with respect to its metropolitan territory. But was this indeed the case? Or did the UK have all of the Rome Statute obligations conditioned by territory with regard to, say, Bermuda, from the moment of ratification? And what of the territorial jurisdiction of the ICC?

Up until the end of its empire after the Second World War the UK had a rather stringent policy of including so-called colonial clauses in the multilateral treaties to which it was a party. Thus, for example, it had the negotiating power to have such clauses included in the ECHR and the Genocide Convention. The UK was motivated in this partially by a policy desire to avoid assuming burdensome obligations for territories in which it did not want to apply them, and partially by a constitutional convention that it needed the assent of its dependencies for the extension of treaties to them. The UK’s efforts were resisted, however, in respect of other treaties, such as the ICCPR. With regard to those treaties, the UK employed the practice of filing a declaration that would specify the territories to which the the treaty would apply – as with the ICCPR, and now the Rome Statute.

(For general background on all of this (and some fantastic scholarship), see Brian Simpson’s Human Rights and the End of Empire (OUP, 2004), as well as L. Moor and AWB Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’, (2006) 76 BYBIL 121.)

Now, the big question is whether such declarations have any effect – and in particular, whether the UK’s declaration with regard to the Rome Statute has such an effect. What these declarations try to do is to avoid the application of Article 29 VCLT, which reads ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’

As explained by the ILC in its Draft Articles on the Law of Treaties, the ‘entire territory’ bit encompasses all territories over which a state has title, and not just its metropolitan territory. Art. 29 thus creates a rebuttable presumption that a treaty applies to all of the territories that belong to a state party.

Now, Art. 29 doesn’t explicitly deal with declarations of territorial scope as those routinely used by the UK. The Draft Articles do say, however, that:

One Government [I imagine the UK, but I haven't checked] proposed that a second paragraph should be added to the article providing specifically that a State, which is composed of distinct autonomous parts, should have the right to declare to which of the constituent parts of the State a treaty is to apply. Under this proposal the declaration was not to be considered a reservation but a limitation of the consent to certain parts only of the State. The Commission was of the opinion that such a provision, however formulated, might raise as many problems as it would solve. It further considered that the words “unless a different intention appears from the treaty or is otherwise established” in the text now proposed give the necessary flexibility to the rule to cover all legitimate requirements in regard to the application of treaties to territory.

So what are then we to do with the UK’s declarations? First, it does not regard them as reservations, but as ‘limitations on its consent’ only to parts of its territory. But isn’t a reservation precisely a limitation on state consent? A mere interpretative declaration cannot as such have direct effect on state obligations, as this territorial declaration purports to. Second, Art. 120 of the Rome Statute explicitly forbids any reservations. Third, whatever their nature, they might reflect the UK’s intention, but they certainly do not reflect that of the other parties, which is the Art. 29 VCLT criterion. Finally, and quite oddly, unless I am mistaken from my quick skim of the UN treaty collection, the UK made the ICC declaration only some 12 years after it ratified the Statute. How can this affect the consent that it had already given? It is only if a general rule existed to the effect that states can vary the territorial scope of their obligations via declarations – but as we have seen the ILC was quite explicitly opposed to such a rule, and the instability it potentially brings seems very much undesirable, and unsupported by state practice.

Then again, Denmark also made a similar declaration with respect to the Faroe Islands and Greenland, which it later withdrew, as did the Netherlands. No state objected to such declarations in principle, which might be taken as a inference that they are permissible, and would thus serve to rebut the Art. 29 VCLT presumption. This is, in short, quite a vexing little problem – and one that I doubt the Court will ever have the opportunity to resolve.

I was asked by the organizers of the 2010 ILA Conference in the Hague to put up this notice, and do so with pleasure. The Conference starts in a couple of days, and I’m sure it’ll be a wonderful event.

The 15^th – 20^th of August 2010 marks a historic moment for the Netherlands Society of International Law as it brings together over 600 lawyers from all over the world to discuss how international law and institutions can and should contribute to solving global problems.

The event – the 74^th Biennial Conference of the International Law Association – is being hosted in the Hague by the Netherlands Society of International Law as part of the events marking the 100^th year of its existence. The wide range of topics to be discussed at the panels of the conference include the international accountability of government lawyers for advice that  leads their governments to violate international law, the tensions between peace/reconciliation and justice before the International Criminal Court (ICC), the International Court of Justice Advisory Opinion in the Kosovo Case, current international law on piracy and the argument that Somali pirates are freedom fighters, the role of international law in global economic governance and financial supervision after the financial crisis, the ICC as either a court of last resort or simply a means for guaranteeing domestic proceedings are exactly like the ICC’s,  the enforceability or otherwise of the Millennium Development Goals and the role of international law in realizing those goals, the interplay between international human rights and national law in domestic litigation (plaintiffs’ and defendant’s perspectives), access to justice at the domestic level and the tension between local/national and international ideas of justice, the necessity or otherwise of an Organisation for the Prohibition of Biological Weapons (OPBW), the Sudan Abyei Arbitration as an example of international law arbitration as conflict prevention, Islamic finance and in general the role of religion in the making and practicing of law, forum based limitations to parties’ freedom of choice of applicable law in arbitration and a-national or transnational law as a possible solution thereto, and the relationship between the Responsibility to Protect (R2P) and the use or non-use of force in international law.

Alongside the panel discussions, there will be Open Working Sessions of the Committees and Study Groups of the ILA at which the various Committees and Study Groups will discuss the reports of their research on a variety of contemporary issues of international law. Committees which will be discussing their work include the Committees on Feminism and International Law, Islamic Law and International Law, Space Law, Non State Actors, Reparation for Victims of Armed Conflict, International Securities Regulation, International Law on Sustainable Development, Rights of Indigenous People, Legal Principles Relating to Climate Change, the Teaching of International Law,  International Civil Litigation and the interests of the public, Cultural Heritage Law, International Commercial Arbitration, International Criminal Court, International Family Law, International Human Rights Law, International Law on Biotechnology, International Protection of Consumers, International Securities Regulation, International Trade Law, Outer Continental Shelf, Recognition/Non-recognition in International Law and Responsibility of International Organizations. Most of the Committee and Study Group reports are already available on the ILA website and can be downloaded via http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm.

Updates on the conference will be available on the conference blog which can be accessed from the website of the conference (http://www.ila2010.org). Reports and resolutions adopted at the conference will be available later.

Conference details

Venue:  The Hague University of Applied Sciences (Haagsche Hoge School),

Johanna Westerdijkplein 75, 2521 EN, The Hague

Formal Opening: Monday, 16^th August at 9 a.m.

Our readers might wish to know that the the ICJ’s recent Order on the inadmissibility of Italy’s counter-claims in the Jurisdictional Immunities of the State case, that was buried under the deluge that was the Kosovo AO,  is available from today on the ICJ’s website, together with three separate opinions. The Order essentially deals with the temporal admissibility of claims under Article 1 of the European Convention for the Peaceful Settlement of Disputes, and is in a way a sequel to the Certain Property (Liechtenstein v. Germany) case rejected by the Court a few years ago.

Editor’s Note: This is a featured post. Newer posts, including those in our online symposium on The Constitutionalization of International Law, appear below

The ICJ has now officially announced that it will deliver its advisory opinion in the Kosovo case on 22 July. This essay/post is intended to serve as a preview of the many issues raised in the case, of the main lines of argument by states before the Court, and of the several possible avenues that the Court might take in deciding the case. (more…)

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

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