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Home Archive for category "EJIL Analysis"

France Legislates on State Immunity from Execution: How to kill two birds with one stone?

Published on January 23, 2017        Author: 

France has never legislated on State immunity to the same extent as the US, UK and other countries. Instead, sovereign immunity under customary international law has been mainly governed by case law, save for two little known provisions: Article 111-1 of the civil enforcement procedures code providing for the principle of immunity of domestic and foreign public entities, and Article 153-1 of the monetary and financial code providing for the immunity of foreign central banks and monetary authorities. Even though France ratified the United Nations Convention on Jurisdictional Immunities of State and their Property of 2004 (UNCSI) with Law No. 2011-734 of June 28, 2011, contrary to Japan, Spain and Sweden, France did not incorporate the Convention into domestic law. The recent decision to incorporate only Articles 18, 19 and 21 of UNCSI on immunity from execution was rather motivated by the fact that, first, the jurisprudence of the Cour de cassation had become unpredictable and, second, the French government was embroiled in diplomatic complications with foreign States. With two Articles of Law No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and modernising economic activity of December 9, 2016, France has, on the one hand, purported to codify customary law on State immunity from execution, as reflected in UNCSI, (Article 59), a provision portrayed by its opponents as the “Putin amendment” made specifically to respond to the Russian law of 2015 which threatens to deprive foreign states of their immunity if they ignore Russia’s immunity, in particular with regard to seizures made following the aftermath of the Yukos award. On the other hand, it has enacted specific rules on execution proceedings against foreign States undertaken by so-called “vulture funds” as had been the case with the famous NML capital Ltd. v. Argentina litigation (Article 60).

This post will focus on the first of these two provisions, Article 59. Read the rest of this entry…

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Echoes of Kadi: Reforms to Internal Remedies at INTERPOL

Published on January 20, 2017        Author: 

In November 2016, the international police body INTERPOL adopted major reforms to its internal complaints mechanism, the Commission for the Control of INTERPOL’s Files (CCF) (see the new Statute of the CCF, entering into force in March 2017 (CCF Statute)). The reforms respond to campaigning by the NGO Fair Trials (see its response), and are welcome news for practitioners. They will also be of particular interest to observers of the case-law concerning international organisations (IOs), UN sanctions and the role of international-level remedies systems as a substitute for judicial review in municipal-level courts. The CCF Statute represents a serious effort to ensure effective access to justice within INTERPOL and, thereby, justify INTERPOL’s immunity before national courts. However, as discussed below by reference to one key aspect of the new rules (disclosure of evidence), the success of these reforms depends upon their interpretation and application by the CCF itself.

The back story: IOs and the doctrine of alternative remedies

Since the second world war, sovereign states have transferred numerous tasks to IOs such as the UN and (controversially for some) the EU. By their nature, IOs cannot be governed by the national law of a single country and are granted immunity (typically in their Headquarters Agreements) from the jurisdiction of national courts. The problem arises when the IO acts in such a way as to impact on the fundamental rights of an individual: without a court to turn to, where does he seek a remedy?

The issue first arose before the European Court of Human Rights (ECtHR) in cases relating to other IOs. In Waite and Kennedy v Germany, the German employment courts had upheld such an immunity and refused to hear a claim brought by contractors against the European Space Agency (ESA). The contractors argued a breach of their right of access to a court, protected by Article 6 of the European Convention on Human Rights (ECHR). The ECtHR found that the restriction did not impair the essence of the right, in that an appeals board within the ESA offered ‘reasonable alternative means to protect effectively their rights’ (at 68-69). That is the basic principle: the IO may escape national court jurisdiction, provided it offers an alternative system ensuring access to justice. Read the rest of this entry…

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Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Published on January 20, 2017        Author: 

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides. Read the rest of this entry…

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International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

Published on January 19, 2017        Author: 

Editor’s Note: This post is the final part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. We thank all of those who have contributed to  this symposium.

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1      Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian. Read the rest of this entry…

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Asian States’ Participation in International Adjudication: Comments

Published on January 18, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting on Monday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Asia is a vast region and encompasses more States and a larger population than any other region in the world. Asia also presents historical, linguistic, cultural, and religious diversity, as well as wide-ranging stages of political evolution and economic development. Asia indeed defies an easy definition. It is therefore difficult to speak, in a general term, of Asia with respect to any subject. International law and institutions are no exception. There is a wide variation in Asian States’ engagement with international law and institutions. For example, many States in East Asia are actively participate in various international regimes and attach great importance to international cooperation. On the other hand, some Asian States still adhere to the unrealistic, outdated notion of sovereignty and refuse to engage with other States. It should also be pointed out that Asian States’ attitudes towards international law and institutions are not static but evolving. In this comment, I will confine myself to Asian States’ participation in international adjudication, which may be considered one of the most revealing yardsticks to measure their attitudes toward international law and institutions.

Much has been said about the Asian States’ passivity towards international law and institutions. Various explanations have been given for such reticence, ranging from the Asian culture and tradition which prefer virtue and harmony to law and adjudication to the prevailing distrust of the law and institutions which were essentially a product of the Western civilization (and thus perceived to be biased in favour of the West) and in whose creation and developments Asian states did not play significant roles.

At least in terms of the number of disputes submitted to international adjudication and their political and legal context, it would be difficult to characterize the attitude of Asian States toward international law and adjudication as positive. For example, there had been only three cases involving Asian states that had been referred to the Permanent Court of International Justice during its entire period of activities (S.S. Wimbledon, 1923; Denunciation of the Treaty of 2 November 1865 between China and Belgium, 1928; Interpretation of the Statute of the Memel Territory, 1932). The picture was not much different in the subsequent early period of the International Court of Justice (ICJ), during which many Asian States obtained independence mostly from the Western colonial powers. Iran was the first Asian State to appear before the ICJ in 1952 in the Anglo-Iranian Oil Co. case but Iran was taken to the Court by the United Kingdom. The Court eventually found that it lacked jurisdiction to entertain the dispute. Then India was the next Asian State to appear before the Court in the case concerning Right of Passage over Indian Territory in 1955. However, India was also taken to the Court by Portugal. In 1959, Cambodia instituted the proceedings against Thailand in the Temple of Preah Vihear case, and that was the first case involving the two Asian States before the ICJ. Subsequently in the 1970s, India and Pakistan were involved in the two cases before the Court (Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan), 1972; Case concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 1973). In the 1980s, Iran was involved in two disputes with the United States before the ICJ. However, those instances were rather exceptions than the rules (US Dipolmatic and Consular Staff in Teheran (USA v. Iran), 1980; Aerial Incident of 3 July 1988 (Iran v. USA), 1989-1996 (discontinuance)).

Read the rest of this entry…

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

Read the rest of this entry…

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Clarity and Ambivalence: Asia and International Law

Published on January 17, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting yesterday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

One of the important developments in international law in the past few decades has been the increased understanding of approaches to it that do not arise from Western industrialised states. The work of scholars such as Anthony Angie, Lauri Mälksoo, Sundhya Pahuja, Balakrishnan Rajagopal, and others have been important in this regard. Therefore, the article by Simon Chesterman on ‘Asia’s Ambivalence about International Law and International Institutions: Past, Present and Future’ in the EJIL  is a timely engagement with an important aspect of this understanding.

Simon establishes the main issues very well and clearly. A combination of colonialism, treaty-making, recognition and armed conflict is shown to have created an ambivalence by key Asian states towards international law and international institutions. He offers a helpful and nuanced analysis without creating a false dichotomy between ‘Western’ and ‘Asian’ views. It is a pity that his article must have been finalised before 25 June 2016 when the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law. This Declaration has been seen as being a rejection of a view that these two states have a problematic relationship with international law and an assertion of an approach based on state sovereignty and non-intervention, as well showing broader differences on the international constitutional order: see here.

My main hesitation about this valuable article is the definition of ‘Asia’. Simon defines it as being ‘the 53 members of the Asia-Pacific Group at the UN’. However, he ignores the Pacific members (such as Fiji and Papua New Guinea) of this grouping and the Middle Eastern members (such as Iraq, Lebanon and Saudi Arabia), which together comprise nearly 45% of this group. This calls into question some of his reliance on figures and tables about Asia-Pacific participation in international institutions. For example, in the Pacific sub-region, some of the reluctance to ratify treaties and engage in international institutions may be due to their own institutional and human capacity. It would also have been interesting to learn more about the approaches of Singapore and Malaysia, which are economic powers in the region, and have appeared to take a very formalist approach to international law. Read the rest of this entry…

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Will the Asian Vision of International Law become Dominant in 2017?

Published on January 16, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.

Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.

Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.

Read the rest of this entry…

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Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! mini-symposium

Published on January 16, 2017        Author: 

A decade after moving from New York to Singapore, I began work on this article in the hope of understanding what seemed to me a paradox. Well into the much-vaunted “Asian century”, the states of this region arguably benefit most from the security and economic dividends of a world ordered by international law and institutions — and yet those same states are the least likely to subscribe to such norms or participate in the bodies they create. Regionally, there is no counterpart to the continent-wide organizations in Europe, Africa, or the Americas; individually, Asian states are most reluctant to sign onto most international regimes and underrepresented in the entities that govern them.

The article opens with a brief history of Asia’s engagement with international law. The focus is on three aspects that continue to have resonance today and contribute to the wariness of international law and institutions. First and foremost is the experience of colonialism by India and many other countries across the continent: for centuries international law helped justify foreign rule, later establishing arbitrary standards of “civilization” that were required in order to gain meaningful independence. Secondly, and more specific to China, the unequal treaties of the nineteenth century and the failure to recognize the Communist government in Beijing for much of the twentieth encouraged a perception that international law is primarily an instrument of political power. Thirdly, and of particular relevance to Japan, the trials that followed the Second World War left a legacy of suspicion that international criminal law only deals selectively with alleged misconduct — leaving unresolved many of the larger political challenges of that conflict, with ongoing ramifications today.

It should not be surprising, therefore, that some Asian states take the position that international law is of questionable legitimacy, can be used for instrumental purposes, and is necessarily selective in its application. Read the rest of this entry…

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Joint Symposium with Opinio Juris: Simon Chesterman’s ‘Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures’

Published on January 16, 2017        Author: 

This week we will be jointly hosting a symposium with Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law.

Today, both blogs will feature an opening post by Simon Chesterman. We will then host a post by Eyal Benvenisti, which will be followed by a post on Opinio Juris by Tony Anghie. On Tuesday, EJIL:Talk! will feature a contribution by Robert McCorquodale and Opinio Juris will feature B.S. Chimni‘s thoughts. This will be followed on Wednesday with articles by Judge Jin-Hyun Paik (EJIL:Talk!) and Judge Xue Hanqin (Opinio Juris). Finally, on Thursday, Simon Chesterman’s closing remarks will feature on both blogs.

We thank all of those who have contributed to this fascinating symposium.

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