On August 17, a US District Court handed down a fascinating piece of statutory interpretation that apparently means that unless a Somali pirate succeeds in stealing something, he cannot be charged with piracy under US law.

There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.

This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.

The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium [1934] AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:

“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.” (more…)

Last week (Aug 12) was the 61st anniversary of the adoption of the 1949 Geneva Conventions on the protection of victims of armed conflict. The Geneva Conventions are the most widely ratified treaties with 194 parties to each of the four conventions. The next most widely ratified treaty is the Convention on the Rights of the Child with 193 States parties and then comes the UN Charter with 192 parties. This summer I taught a course on “International Law and Armed Conflict” as part of the Oxford Masters in International Human Rights Law. I mentioned the statistics above in class and one student asked who are the two States that are parties to the Geneva Convention but not members of the UN. I thought long and hard (not too long though as the class had to go on) but couldn’t come up with an answer. The next day one student came up with one of the States but I still wasn’t able to think of the other State. So I’m now throwing the question out to readers: Which States are parties to the Geneva Conventions of 1949 but not members of the UN?

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna. This note was prepared before the Enron v. Argentina annulment decision became available at the beginning of August. A note on that case is forthcoming on EJIL: Talk!

On 29 June 2010, the ad hoc ICSID Annulment Committee annulled the initial award in Sempra Energy International v. Argentina, finding that the initial tribunal had exercised a manifest excess of powers. The decision is central to our understanding of necessity in international investment law, and particularly the relationship between necessity under Article XI of the Argentina-US BIT of 1991 and under customary international law. Unfortunately, the committee’s decision leaves much to be desired in terms of its interpretive methodology. The central critique of this post, is the degree of relevance the committee’s decision gives to necessity under customary international law when interpreting Article XI. It also questions the presumptive relevance of necessity under custom as an interpretive tool, when the latter can only apply if the investor does not hold substantive or procedural rights under the BIT.

Background

The investor-state arbitration awards concerning Argentina are, for the most part, centred on the Argentine financial crisis that hit the country in late 2001. As a consequence of the crisis, Argentina undertook specific regulatory measures which liquidated the value of foreign investments (the factual matrix is far more complex, but shall not be entered into here). In the spade of investment arbitrations brought by foreign investors, Argentina has argued that it is not liable under a range of BITs due to the defence of necessity. In regards to US investors, such arguments have fallen under both customary international law and Article XI of the Argentina-US BIT. The latter reads as follows:

‘This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace and security, or the protection of its own essential security interests.’

Thus far six rulings have been made on the operation of necessity under Article XI and custom. (more…)

Francesco Messineo will join Kent Law School (Canterbury) as a Lecturer in Law in October 2010. He is currently a PhD candidate at the University of Cambridge.  Between 2004 and 2006, he was the Refugee Coordinator of the Italian Section of Amnesty International. His most recent publications include an aritcle in the Journal of International Criminal Justice  on the Abu Omar Case

Doves and hawks?

Judgments delivered by the Fourth Criminal Section of the Tribunal of Milan, in Italy, do not generally make compelling reading for admirers of John Le Carré or Ian Fleming. Nevertheless, the one delivered in February 2010 by Dr Oscar Magi is a remarkable exception, for it contains a graphically detailed account of how the CIA and the Italian secret services conducted their ‘anti-terrorism’ operations in 2003 – down to the mobile phone numbers they used, the Internet map services they employed, and the type of private jets they chartered.[1] Above all, however, a rather chaotic state of affairs emerges from all this. Those CIA agents whose job was to abduct people in the ‘extraordinary renditions’ program probably believed that they were welcome to act as they pleased in Italy, and that they would be allowed to do so irrespective of Italian law.[2] Judge Magi strongly affirmed that they were not – and long prison sentences were imposed on many of them. One does not very often see CIA agents convicted by the courts of a friendly state. This may explain why the CIA committed one of its worst strategic mistakes in the last decade and overlooked both the constitutional independence of the Italian judicial system and the strong institutional tensions between different branches of the Italian government. In practice, because all the convicted Americans were tried in absentia, this simply means that they will not be able to travel to Europe for quite some time – or will have to do so under different identities, which presumably should not be an insurmountable problem for them. Yet, this case is quite remarkable because it is the only ‘renditions’ trial that reached the verdict stage. As such, it had quite some impact in the multifaceted relationship between Italy and the United States (see here and here for the ‘concerns’ and ‘disappointment’ of the State Department). In addition, it highlighted the untenability of some aspects of the fight against terrorism: not surprisingly, Human Rights Watch declared that this case ‘put the war on terror on trial’. Because it would be inappropriate for an international lawyer to comment on the former aspects (Italo-American relationships are best left to those who know more about them), I will focus on the latter issues – why renditions are untenable as a matter of law and policy. To do so, I will start by describing the evident conflict of power arising from the outset in this particular case. (more…)

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.

Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to. (more…)

Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy; and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies, John Hopkins University, Washington DC. She is also a  visiting fellow at the Hoover Institution and a member of the UN Human Rights Committee.

If you’re a betting person, here’s a safe bet: On August 9, the balloting in the east African state of Rwanda will give world-famous military leader Paul Kagame yet another seven-year term as president. The astonishing margin of victory will impress even the modern grand viziers of Central Asia. The outcome is quite easy to predict, when no other candidates are allowed to campaign.

Given this and much else besides, it’s time Washington began to create some distance from a man who has earned his reputation as a de facto despot who terrorizes critics and does not shrink from political violence.

Kagame revels in his fame as the strategist who led a Tutsi invasion force from Uganda in 1994, pushing back the Hutu army and Hutu militia, though not before they perpetrated a shocking genocidal slaughter of hundreds of thousands of the country’s Tutsi minority, as well as moderate Hutu. Washington, reeling from Somalia and fearing another Black Hawk Down, refused to intervene. Madeline Albright was directed to inform the U.N. Security Council that, no, we would not reconstitute the U.N. peacekeeping force in Rwanda, and, further, the United States would veto any resolution that authorized other countries to do so. It was the season of peacekeeping misadventures, and the Clinton White House decided, as one former National Security Council official recalls, that it could not afford to intervene both in Haiti and Rwanda. Presidential Decision Directive 25, drafted by Richard Clarke as a white paper for peacekeeping, morphed into an excuse to “just say no.”

For the last 15 years, Kagame has at every turn invoked these memories to shoehorn the West into a nearly reflexive support for his government. Even Bill Clinton came back to apologize. Kagame has become a fixture at the United Nations in New York, regaling delegations in the Indonesian Lounge, extolling his vision of benevolent autocracy, claiming to admire Singapore as his model for economic growth and insisting that he and only he can keep Rwanda’s torn society knitted together.

In truth, the Rwandan leader presides over nothing more than hollow democracy. He has attacked and exiled any and all viable political opponents. The local press, as well as international journalists, have been bludgeoned and harassed. The regime uses the Stalinist crime of “divisionism” as a pretext to silence and prosecute any critic who dares question its policies or the state sanctioned version of the 1994 conflict. (more…)

 Christian J. Tams is Professor of International Law at the Univeristy of Glasgow. His publications include Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005).

The International Court of Justice’s Kosovo opinion of 22 July had been much expected. It was one of the not so frequent instances which the world (as opposed to State parties, or a small group of international lawyers) was waiting for the world court to speak. Great expectations can lead to great disappointment. And judging from the first round of reactions and responses on this blog and in other fora, there is indeed a feeling of disappointment: of course among those who expected a different outcome, but also among those who would have hoped for a fuller discussion of the legal issues raised by the unilateral declaration of independence of 17 February 2008.

I share many of the points made in the posts by Dapo and Zoran in their posts on this blog, notably their surprise at the Court’s strained conclusion on the identity of the authors of the declaration of independence – a readjustment of the request that is rightly criticised by Vice-President Tomka in his declaration. Instead of reiterating my agreement with other criticisms, I will use this comment to make two broader points on the scope of the opinion. The first comes back to the “minimalist” focus of the opinion, and essentially is an attempt to shift some of the blame away from the Court. The second is a reflection on what seems to be the crucial substantive statement of the opinion – namely that general international law does not prohibit declarations of independence.

A narrow answer to a narrow question

First, the Court’s minimalism. Few fail to mention it, some even speak of a “non-opinion”. I agree: the Kosovo opinion is narrowly argued, and its advisory value limited. But unlike some others, I do not think the Court can really be blamed for that. Of course, some of the judges may have been relieved to offer a narrow/cautious/minimalist reasoning, yet this is not unusual: when faced with high profile disputes courts often decide to be technical, and the ICJ is no exception. The real point is another one, and while obvious, I do not think it is properly reflected in the discussion so far. It is this: (more…)

Editor’s Note: This post continues our discussion of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law. In this post Prof. Peters responds to earlier posts by Professors Dunoff and Trachtman , Steven Wheatley, Jean Cohen, and  Dan Bodansky.

It is an honour to receive comments by distinguished experts on constitutionalism and international law. And it is fun to engage in a substantial discussion on difficult issues.

1. Method: All commentators raised important methodological issues.

Description and (‘top down’) prescription

Dunoff and Trachtman reproach us of a ‘top down’ approach to constitutionalism. In the introductory chapter, it was made clear that the book is, as such, a normative exercise, on a middle level of abstractness, and hooking onto existing legal rules, principles, and institutions. To the extent that this meant to ‘extrapolate’ trends (of constitutionalization), the study included the claim that these trends actually exist (a claim which was openly formulated in the book).

Dunoff and Trachtman also reproach us of embracing an ‘overly heroic vision of the law’. This critique manifests a disciplinary rift in the approaches of the two books, ours and the one edited by our critics. (see here). Dunoff and Trachtman espouse a more empirical method, more informed by social science. In contrast, we as a trio have not attempted to apply sociological methods, neither in quantitative not in qualitative terms. Our arguments are, as declared in Chapter 1, normative ones.

International constitutional law and politics

Steven Wheatley points out that the ‘language and metaphors of constitutionalism suggests a realm of (“neutral” and “objective”) discourse that sits above … politics’, whereas in reality the ‘global constitutional settlement … is the product of political debate, discourse, and will’. Along that line, Dunoff and Trachtman suspect us of *’under-estimating the role of international politics’.

Dunoff and Trachtman are right in saying that the enactment of positive law is only a ‘starting point, rather than a culmination’. Nevertheless, any (political) action does need a starting point. Under the rule of law, positive law is indeed a conditio sine qua non of governmental action. I postulate that there is an international rule of law which requires international governance to be based on legal rules (i.e. on formal and general prescriptions) as opposed to governance by ad hoc decisions.

Moreover, law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product (and desired consequence) of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics. (more…)

The UK government has announced recently that it plans to introduce legislation which would somewhat restrict the application of universal jurisdiction in the UK. The proposed rules do not restrict the scope of universal jurisdiction in the UK but will affect the possibility of private persons obtaining an arrest warrant in relation to universal jurisdiction crimes. The statement released by the government is as follows:

“Our commitment to our international obligations and to ensuring that there is no impunity for those accused of crimes of universal jurisdiction is unwavering.

It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution – otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy.

The Government has concluded, after careful consideration, that it would be appropriate to require the consent of the Director of Public Prosecutions before an arrest warrant can be issued to a private prosecutor in respect of an offence of universal jurisdiction.”

Is this part of the demise of universal jurisdiction? I think not. The change is only a very slight restriction on how universal jurisdiction legislation will be applied given that the consent of the UK Attorney General was always required for prosecutions under such legislation. Also, it is worth pointing out that just last year the UK extended UK jurisdiction with respect to crimes under the UK’s International Criminal Court Act. (more…)