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Home Archive for category "EJIL Analysis" (Page 2)

The Marshall Islands’ Case against India’s Nuclear Weapons Program at the ICJ

Published on June 27, 2014        Author: 

ShashankShashank P. Kumar is a Dispute Settlement Lawyer at the Appellate Body Secretariat of the WTO in Geneva and a visiting lecturer of international law at National Law University, Jodhpur, India.

Earlier this year, on 24 April, the Republic of the Marshall Islands filed an application against India and eight other States at the International Court of Justice (ICJ), claiming that these States, known or presumed to possess nuclear weapons, have failed to fulfil their obligations under international law with respect to nuclear disarmament and the cessation of the nuclear arms race at an early date. In its application against India, the Marshall Islands accused it of not engaging in negotiations to cease the nuclear arms race, highlighting that India, instead, continues to expand and improve its nuclear arsenal. By an Order dated 16 June 2014 the Court noted India’s objection to its jurisdiction, as well as its refusal to participate in procedural meetings, and decided that the jurisdictional questions must be separately determined before proceeding to the merits. This post explores the basis of the Court’s jurisdiction over the Marshall Islands’ application against India. One reservation to India’s optional clause declaration excluding disputes concerning actions taken in “self-defence” suggests that the Court lacks jurisdiction over the case.

The Marshall Islands relies on different grounds to establish the Court’s jurisdiction in its nine applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these States’ declarations accepting the Court’s compulsory jurisdiction. In its applications against the United States, China, France, Russia, Israel and North Korea – none of whom have made declarations accepting the Court’s compulsory jurisdiction – it calls upon these States to accept the Court’s jurisdiction under the doctrine of forum prorogatum. The application against India is unique because, while India has accepted the Court’s compulsory jurisdiction, unlike the UK and Pakistan, India made a reservation to its Declaration that may exclude the Court’s jurisdiction over the Marshall Islands’ Application.

The Limits of India’s Recognition of ICJ Jurisdiction

On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made a declaration, on India’s behalf, which recognizes “as compulsory ipso facto and without special agreement … the jurisdiction of the [ICJ] over all disputes”. This blanket acceptance is qualified by a long list of reservations that excludes several categories of disputes from the scope of India’s consent. One broad class of disputes that is excluded are “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, … and other similar or related acts, measures or situations in which India is, has been or may in future be involved”. Read the rest of this entry…

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The Legality of Turkey’s Possible Self-Defence Action against ISIS: A Response to Ashley Deeks

Published on June 25, 2014        Author: 

SinaSina Etezazian is a PhD Candidate at Monash Law School.

In a recent blog post at Lawfare, Professor Ashley Deeks analyses the manner in which Turkey may lawfully protect the Turks taken hostage by the jihadist group ISIS (the Islamic State in Iraq and Syria).  She contends that ‘if the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals’ in accordance with Article 51 of the UN Charter.  She also takes the view that the forcible protection of citizens abroad may be equated with permissible self-defence when:

(1) the nationals in question face imminent threat of (or have suffered actual) injury;

(2) the host state is unwilling or unable to protect or rescue them; and

(3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.

However, Deeks is on shaky legal ground concerning the ‘unwilling or unable’ and ‘last resort’ requirements. I do not aim here to consider the legal status of the protection of nationals abroad; I have discussed it elsewhere  (and it has also been addressed in length on this and other blogs and forums since the Russian intervention in Crimea). Instead, I want to explore a distinction that can be drawn between forcible responses to territorial and non-territorial attacks with respect to the ‘unwilling or unable’ and ‘last resort’ tests, clarifying why – contrary to what Deeks asserts – Turkey might not be allowed to undertake unilateral forcible measures to protect its nationals in Iraq on the basis of the right of self-defence.

The ‘Unwilling or Unable’ Test and a Distinction between Responses to Territorial and Extraterritorial Attacks

The point that Deeks makes regarding the ‘unwilling or unable’ test can hardly be said to reflect existing law, as it is founded on the claim that ‘unwilling or unable’ extends to the protection of nationals abroad, which is itself a very controversial issue in modern jus ad bellum. Let us suppose for the sake of argument that ‘unwilling or unable’ qualifies as a new norm of customary international law that allows for the exercise of the right of self-defence against non-state actors when the host state is unwilling or unable to prevent its territory being used as a base for launching attacks against the victim state’s soil. Even allowing that position, it is extremely unlikely that its scope has been so widened as to include the military rescue of nationals threatened extraterritorially.

It is true that the ‘unwilling or unable’ test has attracted some level of support from the international community since 9/11, especially when the attack has been directed against the territory of the victim state (as was apparent from states’ reaction to the September 11 attacks). Nonetheless, the most recent trend in state practice clearly demonstrates that the argument for ‘unwilling or unable’ would be uncertain at best in scenarios where Article 51 has been invoked to rescue nationals allegedly at risk outside their territory. Read the rest of this entry…

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Keep Calm and Call (no, not Batman but …) Articles 31-32 VCLT: A Comment on Istrefi’s Recent Post on R.M.T. v. The UK

Published on June 19, 2014        Author: 

Panos MerkourisPanos Merkouris, LL.M (Athens) 2004; LL.M (UCL, London) 2005; Dr. iur. (Queen Mary, London) 2010 is Lecturer in Public International Law in the Faculty of Law at the University of Groningen.

In a recent post on R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration’ Kushtrim Istrefi raises important issues with respect to the application and content of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). Although I agree with the general conclusion that Article 31(3)(c) is not a panacea and should not be used as a backdoor for judicial activism, I think it pertinent to highlight certain issues as to the manner in which this conclusion is reached and in particular regarding the presumed content of Article 31(3)(c).

Firstly, let me clarify that this post is not about evolutive interpretation to which the ECtHR seems to be partial. Nonetheless, I agree with Eirik Bjorge’s comment to the above post, that this idea of ECHR as a living instrument is included in the preamble (‘…further realisation of human rights and fundamental freedoms’). Furthermore, the connection of evolutive interpretation with Article 31(3)(c) is particularly evident in ‘generic terms’. A ‘generic term’ can be understood either as ouverture du texte or renvoi mobile (Georgopoulos (2004) 108 RGDIP 132-134). In the former case, the openness of the term allows the content of the norm to change alongside the factual situation contemplated (‘evolution of fact’). Such an interpretation probably falls under Article 31(1). In the case of renvoi mobile, the norm, whenever interpreted, reflects the ‘evolution of the law’. As the law changes so does the content of that norm. In this case, evolutive interpretation could be understood as also being based on Article 31(3)(c).

Kushtrim’s main argument is that because ILO Convention No. 87 and the European Social Charter (ESC) are not binding on all member States of the Council of Europe (CoE), they probably do not fall within the scope of Article 31(3)(c). This conclusion is based on a restrictive interpretation of Article 31(3)(c), which holds that the Article should be read as ‘any relevant rules of international law applicable in the relations between the parties to the treaty’ and not expansively, as ‘…between the parties to the dispute’. This restrictive interpretation allegedly finds support in EC-Biotech:

7.68… This understanding of the term “the parties” leads logically to the view that the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members…

7.69 … Accordingly, based on our interpretation of Article 31(3)(c), we do not consider that in interpreting the relevant WTO agreements we are required to take into account other rules of international law which are not applicable to one of the Parties to this dispute.

With respect to this restrictive interpretation I would like to raise the following three issues: Read the rest of this entry…

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ESIL Interest Group on Human Rights Launches Online Symposia on International Human Rights Law

Basak2 Dr. Başak Çalı (pictured above left) is Associate Professor of International Law at Koç Univerlmcgregor-53sity, Turkey. Lorna McGregor (pictured right) is a Reader in Law and Director of the Human Rights Centre at the University of Essex School of Law. Ivana Radačić (pictured below left) is a senior research associate at Ivo Pilar Institute of Social Sciences in Zagreb and Radacic_foto_CVa visiting lecturer at the University of Zagreb, the University of Osijek, the European Inter-University Centre for Human Rights and Democratisation (Venice). They are the Founding Co-Chairs of the European Society of International Law’s Interest Group on International Human Rights Law.

The theme of this year’s ESIL annual conference is ‘International Law AND …’  It takes place in a year of conferences seemingly devoted to ‘taking stock’ of the current state of international law and assessing the future opportunities and challenges it will face (see the recent ASIL-ILA conference on the Effectiveness of International Law and last week’s ILA British Branch conference on Foundations and Futures of International Law).

In establishing the ESIL Interest Group on Human Rights, we wanted to ‘take stock’ of International Human Rights Law and in doing so, to ask the big structural, procedural and substantive questions that are necessary to determine its future.  We plan to hold conferences like our inaugural roundtable on ‘International Human Rights Law AND…’ at the ESIL annual conference in Vienna in September and to encourage debate and discussion through online symposia, particularly on EJIL Talk! and other academic and practical projects.

Before our discussions even begin, however, we have to be clear on how we understand international human rights law. We regard international human rights law as a field that is simultaneously positioned both within public international law and across other disciplines.   International human rights law is substantial but nonetheless a sub-branch of public international law as well as part of a large and growing interdisciplinary ‘field’ of human rights.  Characterising international human rights law in this way is often overlooked but gives a much more textured and nuanced picture of its operation and the challenges it faces through resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.

Resistance to Containment to a Sub-Field  

The presentation of international human rights law as a sub-branch conceals its dominance within public international law making it a much bigger project than a ‘sub-branch’ would suggest.  Read the rest of this entry…

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Announcements: Job Openings–Professor/Reader at University of Essex, Legal Advisor at ICRC

Published on June 14, 2014        Author: 

1.  The University of Essex announces an opening for a Professor/Reader in Law (IHRL/ICL/IHL or related PIL). To be appointed to the Professorship an individual will have a clearly established international level reputation in the field of International Human Rights Law or a related field of Public International Law, such as International Criminal Law or International Humanitarian Law, and will be recognised as one of the leaders in their field. For the Readership the appointee will have an outstanding record of excellent research and be able to display clear potential to achieve a chair level appointment in a UK university. The closing date is 14 July 2014. Further details are available here.

2.  The Commentaries Update Project of the International Committee of the Red Cross has a job opening for a legal adviser. Further details  are available here.

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Non-State Armed Groups in NIAC: Does IHL Provide Legal Authority for the Establishment of Courts?

Published on June 4, 2014        Author: 

The recent Serdar Mohammed v. Ministry of Defencecase has prompted a number of interesting and insightful posts addressing the issue of whether international humanitarian law (IHL) provides a legal basis for detention in Non-International Armed Conflicts (NIAC) (see, for example, here, here, here and here). This discussion offers an opportunity to address the issue of non-State armed groups, something not discussed in detail so far, with the notable exception of Aurel Sari’s post. In particular, the existing debate with regard to detention raises, more broadly, the issue of the legal authority extended to non-State armed groups party to a NIAC. In this post, I present an argument in support of one of the most controversial issues in this area: the authority of armed groups to establish courts.

Does IHL regulate armed group courts?

As is well known, IHL does not provide an explicit basis for the establishment of courts in NIAC, but rather regulates their operation in the event they are in fact established. In this regard IHL contains two relevant rules. Common Article 3(1)(d) of the Geneva Conventions of 1949 prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, while Article 6 of Additional Protocol II (AP II) requires that ‘[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. Regarding the common Article 3 requirement that a court be ‘regularly constituted’, sources such as the ICRC Customary IHL Study note that a court may satisfy this requirement ‘if it has been established and organized in accordance with the laws and procedures already in force in a country.’ This would appear to support the argument that IHL does not provide a specific legal basis for the establishment of courts (authority is derived from the municipal law in force). At the same time, this reasoning also appears to preclude the convening of armed group courts since domestic law is (almost certainly) unlikely to establish a legal basis for non-State armed group courts. That said, it should be noted that the Pictet Commentary to the Geneva Conventions does not equate the regularly constituted requirement with a basis in municipal law, but rather focuses on the prohibition of ‘summary justice’.

Article 6(2) AP II – which ‘develops and supplements’ common Article 3 – dispenses with the ‘regularly constituted court’ provision, requiring instead that a court offer ‘the essential guarantees of independence and impartiality.’ The ICRC Commentary notes that this was a deliberate act during drafting, as ‘some experts argued that it was unlikely that a court could be “regularly constituted” under national law by an insurgent party’. Read the rest of this entry…

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Arbitrator Independence and Academic Freedom

Published on May 30, 2014        Author: 

In international law, members of the discipline often fill a variety of professional roles. Many are scholars and practitioners at the same time; some even act in capacities that are mutually incompatible at the domestic level, such as being counsel and decision-maker at the same time – albeit in different proceedings. Investment arbitration is an area where this “double-hat problem” is vividly discussed. The main concern is the independence of arbitrators in light of interests that that individual may have in fulfilling other professional roles. What is less debated is how practice involvement can affect the role of the international lawyer as academic and how practice affects, and risks compromising, the independence of international law as an academic discipline. This is the theme underlying the following discussion of a recent challenge in CC/Devas and others v. India, which was decided by ICJ President Peter Tomka in an UNCITRAL arbitration under the Mauritius-India bilateral investment treaty (BIT). It is an abbreviated version of my thoughts from the first Editorial of the new Journal of World Investment and Trade that just came out.

Challenge in CC/Devas and others v. India

In CC/Devas and others v. India, two arbitrators, Francisco Orrego Vicuña and Marc Lalonde were challenged because they had, in the Respondent’s view, prejudged the meaning of the essential security-clause in the applicable BIT: Mr. Lalonde because he sat in both CMS v. Argentina and Sempra v. Argentina where a similar essential security-clause from the US-Argentina BIT had been an issue; and Prof. Orrego Vicuña because he sat, together with Mr. Lalonde, in the same two arbitrations, as well as in Enron v. Argentina, which also involved the US-Argentina BIT. On top, Prof. Orrego Vicuña had written a chapter on ‘Softening Necessity’ in the Liber Amicorum for Michael Reisman, in which he analyzed the tribunals’ approach to the necessity defense under customary international law and to the essential security-clause.

While ICJ President Tomka rejected the challenge against Marc Lalonde, stating that merely expressing prior views on an issue in an arbitration did not result in a lack of impartiality or independence, he upheld the challenge against Francisco Orrego Vicuña, because the latter had stuck to his approach to interpreting essential security-clauses through three arbitrations and in the academic article in question, although all three awards had been partially or totally annulled precisely on that point. Comparing the two challenges, the article written by Prof. Orrego Vicuña made all the difference. The case may therefore be read as boiling down to upholding a challenge of an arbitrator based on a view he or she has taken in academic writing. This decision is alarming, in my view, not only for investment arbitration, but for scholarship in the field. Read the rest of this entry…

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Who is Unwilling and Unable to Prosecute Crimes Against Humanity in Syria?

Published on May 29, 2014        Author: 

2014.05.26.AbdulhayAbdulhay Sayed is an independent Syrian lawyer, and has been a lecturer in law in the Damascus Faculty of Law from 2005 to 2011.

For Syrians, who are caught between totalitarian arrogance and human folly, the debate in the Security Council on 22 May 2014, over the French-sponsored Chapter VII draft resolution to refer the situation of Syria to the International Criminal Court (ICC), was marked by a tragicomic mix of global point scoring and political impotence. The defeat of the resolution is a major disappointment to Syrians. By refusing to address impunity for crimes against humanity in Syria irrespective of perpetrators’ political affiliations, the Security Council has failed to uphold the basic principles for which the UN is supposed to stand—including saving “generations from the scourge of war” and affirming fundamental human rights and dignity.

The French initiative followed a year-long Swiss-led campaign, which called upon UN member States to refer the Syrian situation to the ICC, because Syria has not ratified the Rome Statute of 1998. The initiative’s failure follows the declaration of the Office of the High Commissioner on Human Rights in January 2014 that it is no longer able to count casualties in Syria. Together, these developments raise the frightening possibility that the problem of impunity in Syria will gradually fade from the UN agenda.

The international community has sought to traverse historic distances since the atrocities of Yugoslavia and Rwanda in the 1990s. There is now a permanent and purportedly universal system of criminal justice, which, in the present tremendously polarized Syrian context, could, at least, provide a structure for the objective naming of atrocious acts of violence as crimes. Surely, this system cannot by itself resolve the conflict or bring solace to the victims. Nonetheless, it could offer some measure of justice, letting victims know that a process could be put in motion to underwrite their long and arduous procession from naming the crimes against them to healing the wounds they inflicted. To demonstrate its credibility, however, this system of justice needed to act in the face of grave crimes in Syria by enabling the ICC to exercise jurisdiction.

Instead, the Security Council showed, yet again, its structural inability to see the Syrian question through the prism of Justice. Accountability for the gravest crimes ranked as less important than the pursuit of a political solution. Through Geneva I and II, the motto was: give priority to the restoration of peace through political negotiation, and let the Syrians address the question of impunity themselves. This approach is blind to the reality of the Syrian tragedy. For many Syrians, the escalation of the conflict is inextricably connected to the persistence of impunity. The failure of the international community to seriously address the question of impunity in Syria for so long has normalized the proliferation of violence in the country and seriously undermined the prospect of a political solution. By failing to pass a resolution addressing impunity, the Security Council has sent a chillingly straightforward message to the perpetrators of violations of International Humanitarian Law in Syria and in other regions: escalating violence improves your chances of securing a seat at the negotiating table. A Syrian political process that is negotiated at the expense of accountability is impossible. It carries the seeds of further atrocities and injustice. Instead, addressing impunity must become a defining criterion for any political process.

It is now very difficult to predict the consequences for Syria, of the Security Council’s failure. For Syrians, the international community has shown itself to be unwilling and unable to genuinely prosecute the grave crimes occurring in the present degenerative state of barbarism in their country.

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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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