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

On Judging v. Legislating in the International Legal System

Published on August 27, 2014        Author: 

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  Read the rest of this entry…

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Developing the International Legal Order or Fomenting Doctrinal Confusion? A Comment on The International Court of Justice and the Judicial Function

Published on August 26, 2014        Author: 

In The International Court of Justice and the Judicial Function, Gleider Hernández offers us an insightful historical narrative and theoretical perspective on the judicial function assumed by the ICJ. According to Gleider, many of the controversies on the bench, resulting at times in contradictory decisions and half-way compromise formulas, stem from an ideological struggle between conflicting institutional goals and competing visions of international law. Hence, the tension between the need to resolve specific disputes and the Court’s interest in developing international law may influence the choice of an interpretive theory to fill in normative gaps and address legal ambiguities; the tension between a state-centered and an international community-based understanding of international law may influence the Court’s decisions on the scope of application of the erga omnes principle; and the tension between the need to preserve judicial propriety and the interest in partaking in the project of maintaining the international legal order may explain, for instance, inconsistencies in the Court’s approach to questions of jurisdiction and locus standi.

Collective decision-making

In this comment, I wish to expand upon two aspects of the conflicting goals, competing functions and doctrinal tensions discussed in the book: the manner in which ICJ judgments are formulated and the effects of outside pressures on the Court. The deliberative process is the subject of Chapter IV of the book. Using, no doubt, some insights he was able to develop while serving as a legal clerk for ICJ judges, Gleider presents the process of formulating an ICJ judgment as a collective exercise in which judges “share collective responsibility both for the voting result and the expression of the judgment”. (p. 105) Such a process may have the merits of increasing the probability of getting the correct outcome (on the basis of the Condorcet Jury Theorem). However, it suffers from a “doctrinal paradox”attendant to the aggregation of judgments emanating from different doctrinal premises. That is, it may simultaneously reflect a meeting of judicial minds on the outcome of the case, and a disagreement on the legal basis underlying the said outcome, resulting in judgments lacking in doctrinal coherence or clarity.

Because of its collective decision-making dynamics, the Court’s judgments may actually exacerbate the confusion generated by the existence of competing goals, world visions, role perceptions, etc. The availability of an initial draft formulated by a small drafting committee does not provide a full remedy to the doctrinal paradox problem, as the composition of the drafting committee changes from case to case, and is thus likely to generate doctrinal paradoxes vis-à-vis earlier decisions whose doctrinal premises the new members of the committee do not fully share. Furthermore, the need for attaining a broad-as-possible consensus during judicial deliberations leads to a process of revising the initial draft, which may detract from its coherence and clarity, sometimes resulting in a final text that Gleider describes as characterized by a “lack of intellectual or logical cohesion”, and as “puzzling” and “emasculating”. (p. 108) Such a result may invite serious criticisms and chip away at the Court’s legitimacy in the eyes of important constituencies. International courts whose judgments-drafting processes are driven by powerful secretariats may thus be better situated than the ICJ to generate clear, coherent and persuasive judgments, which form over time a jurisprudence constante. The more focused mandate of certain specialized courts, such as the ECtHR or the ICC, also facilitates the process of prioritizing goals and identifying a constituency. That, in turn, reduces their risk of becoming entangled in the doctrinal paradox. Read the rest of this entry…

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Discussion of Gleider Hernández’s The International Court of Justice and the Judicial Function

Published on August 25, 2014        Author: 

This wHernandez Bookeek we will be hosting a discussion of Gleider Hernández’s book The International Court of Justice and the Judicial Function, recently published by Oxford University Press. The book has been shortlisted for the Birks Book Prize by the Society of Legal Scholars.

Gleider is (from 1st October) Senior Lecturer in Law at Durham University and a former Associate Legal Officer at the International Court of Justice, acting from 2008-2010 as Law Clerk to Vice-President Peter Tomka and Judge Bruno Simma. He completed his D.Phil at the University of Oxford in 2010 under the supervision of Professor Sir Franklin Berman. His research interests lie within the general area of public international law, and particularly relate to international legal theory (nature and sources of international law), international dispute settlement, and the law and practice of international institutions. Gleider is a member of the Academic Review Board of the Cambridge Journal of International and Comparative Law. His book will be subjected to careful scrutiny this week by Mary Ellen O’Connell (Notre Dame), Iain Scobbie (Manchester), and Yuval Shany (The Hebrew University of Jerusalem). We are grateful to all four for agreeing to have this discussion here.

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Problem with Email Notifications

Published on August 21, 2014        Author: 
A number of readers have written to let us know that they are no longer receiving email notifications when new blog posts are published. We apologize for the inconvenience. We have identified the problem and are working on a solution. Rest assured that no one has been dropped from the subscriber list, so once we sort out the technical issue subscribers should begin receiving emails again.
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Filed under: EJIL Analysis
 

Collective Punishment Receives a Judicial Imprimatur

Published on August 21, 2014        Author: 

In her recent book on the application of international humanitarian law by national courts, Sharon Weill describes the “apologist role” that is sometimes played by domestic judicial bodies, whereby decisions of courts serve to legitimise unlawful state policies. Last week’s judgment by the Israeli Supreme Court (sitting as the High Court of Justice) upholding the orders of a military commander to destroy and seal a number of Palestinian houses in the West Bank is an exemplary case in point.

The judgment in Qawasmeh et. al.is significant for it provides judicial approval for the recent reinstatement of Israel’s punitive house demolition policy after a “decade-long hiatus”. The judges condone practices of collective punishment, despite the existence of a clear prohibition of such practices under international humanitarian law. The approval is not inadvertent, for the judgment shows that the Court is fully aware of the harm caused to persons other than the perpetrator by the practice of demolishing or sealing the houses of those responsible for criminal or hostile acts.

The background facts of the case are well-known, given that the kidnapping and murder of three Israeli teenagers in the West Bank in June 2014 served as the trigger for a violent escalation leading to ‘Operation Protective Edge’ in Gaza. The Israeli authorities identified the alleged perpetrators of this crime and ordered the demolition or sealing of their homes “in view of the need to deter others from the recurrence of similar actions” (although one residence was already destroyed once the individual was identified). At the time of the judgment, two of the suspects had not been arrested and the third had not yet been tried. Since then, the demolition and sealing orders have been carried out, with a statement by the Israeli military expressly referring to the Supreme Court’s affirmation of the orders and its rejection of the petitioners’ appeals.

Read the rest of this entry…

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The ECtHR’s Largest Ever Award for Just Satisfaction Rendered in the Yukos Case

Published on August 15, 2014        Author: 

mccarthy

Dr Conor McCarthy is a barrister at Monckton Chambers, London and formerly fellow of the British Institute of International and Comparative Law.

On 31 July 2014 the European Court of Human Rights issued its decision in the just satisfaction phase of proceedings in Yukos v. Russia. In its judgment the Court made its largest ever award of compensation, ordering Russia to pay in the region of € 1.9 billion to the shareholders of the company at the time of its liquidation. In 2012, the Court had found Russia to be in violation of the rights to a fair hearing and the protection of property under the European Convention on Human Rights and its Protocol 1. The Court’s compensation decision follows on from the recent final awards of three arbitral tribunals, constituted under the Energy Charter Treaty, which found that the Russian Federation had taken measures with the effect equivalent to an expropriation of Claimants’ investments in Yukos, contrary to Article 13 (1) of the treaty. These final awards were issued on 18 July 2014. Russia was ordered to pay almost $ 50 billion in compensation in these proceedings. Claims arising from the circumstances surrounding Yukos liquidation have also been taken before the ICC International Court of Arbitration as well as in national courts in the United Kingdom, the Netherlands as well as, of course, in Russia itself. This post focuses on the ECtHR’s decision, with some reflections on its significance.

Background

The events underlying the Yukos case occurred in the early 2000s, a period of considerable economic and political upheaval in Russia. Between 2002 and 2003 the Russian authorities investigated the tax affairs of Yukos. This culminated, in April 2004, in the company being assessed as having accumulated huge tax liabilities, in part, according to the findings of the Russians authorities, as a result of Yukos having used impermissible sham companies to evade tax. Yukos was ordered to pay approximately € 1.4 billion in tax arrears for the year 2000, € 1 billion in interest and a further € 0.5 billion in enforcement penalties. In the same month proceedings were initiated against Yukos alleging improperly declared tax liability and seeking the attachment of the company’s assets as security for the claim. A hearing was held at the Moscow City Commercial Court in respect of the tax assessment between 21 and 26 May 2004, with much of the evidence in support of the assessment (running to several tens of thousands of pages) being served on 17 May 2004 and in subsequent days immediately prior to the hearing. The assessment was upheld, with Yukos being found liable to pay well over € 1.3 billion in respect of tax in the year 2000, together with almost € 1 billion in interest and € 0.5 billion in penalties. Subsequently, the penalty imposed on Yukos (approximately € 0.5 billion) was doubled when the tax authorities determined that Yukos had used similar tax arrangements in 2001 to those used in 2000.

Yukos sought to appeal the decision of the Commercial Court. The appeal was dismissed by the Appeal Division of the Moscow City Commercial Court on 29 June 2004. On 30 June 2004, the Appeal Court issued a writ for the enforcement of Yukos’s assessed liabilities, compelling compliance within 5 days. Upon Yukos’s failure to pay the sums within the required period, further penalties of 7 % of the debt were levied. Yukos’s requests to extend the very short deadline for payment were unsuccessful. In the next six months there followed further tax re-assessments for each subsequent year to 2003, including in particular huge assessments to VAT as well as profits taxes, penalties and interest, ultimately totalling some € 24billion. The enforcement of these liabilities was immediate and in the absence of immediate payment in full incurred further surcharges.

Yukos were unable to obtain sufficient liquid funds to meet the liability. In December 2004 the majority of the shares in its largest and most profitable subsidiary, Yuganskneftegaz, (“YNG”), were auctioned to meet its tax liability, rendering insolvency inevitable. Yukos was declared insolvent in August 2006.

The treatment of Yukos by the Russian Federation has resulted in considerable litigation at the international level. Read the rest of this entry…

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The Territorial Reach of the EU’s “Right To Be Forgotten”: Think Locally, but Act Globally?

Published on August 14, 2014        Author: 

Brendan Van Alsenoy is a legal researcher at the Interdisciplinary Centre for Law & ICT (ICRI), KU Leuven – iMinds. Marieke Koekkoek is a research fellow at the Leuven Centre for Global Governance Studies (GGS), KU Leuven.

800px-Google_SignIn May of this year, the Court of Justice of the European Union (CJEU) decided that individuals can – under certain conditions – ask Google (photo credit) to stop referring to certain information about them. The CJEU’s recognition of this so-called “right to be forgotten” has kicked up quite a storm. Now that the dust is beginning to settle, it’s time to direct our attention to questions of practical implementation. One set of questions is about territorial reach. How far should the right to be forgotten extend, geographically speaking? Should Google, upon finding that an individual’s request is justified, modify its search results globally? Or should it only modify search results shown within the EU?

According to press reports, Google’s current approach is to limit its modification of results to the “European versions” of the search engine. Search results of people using google.com remain unaltered, while people using google.es or google.be may no longer be seeing the full picture. However, Google still allows its EU users to switch to the .com version, simply by clicking a button at the bottom of the page. EU users can also freely navigate to other country-specific versions of the search engine, whose search results may not be filtered in the same way. By not taking further measures to limit access to “forgotten” search results, it seems as if the search engine is needlessly provoking the wrath of European data protection authorities. So what should the search engine be doing?

Realistically speaking, only two approaches seem viable. The first option would be to “keep it local”, by filtering the search results for queries originating from EU territory – regardless of which country version of Google is being used. The second option would be to “go global”, which would involve modification of search results worldwide. (To be clear, either approach would only kick in once Google has decided to grant a specific request and would only affect results following a name search).

It is true that nothing in the CJEU ruling suggests that Google would be justified in limiting itself to specific websites, countries or regions. But, as even the Chairwoman of the Article 29 Working Party has acknowledged, the matter may not be so clear-cut. Read the rest of this entry…

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The Security Council and Humanitarian Relief in Opposition-Held Territories

Published on August 12, 2014        Author: 

TilmanTilman Rodenhäuser (pictured left) is a researcher at the Geneva Center for the Democratic Control of Armed Forces, and a PhD candidate at the Graduate Institute in Geneva. Jonathan Somer (pictured right) is the founderJonathan Somer of Persona Grata Consulting, advising on international law and policy in fragile states. Until recently he was Legal Adviser for Geneva Call and has previously worked with the Organisation for Security and Cooperation in Europe.

Over the past year, the Security Council has repeatedly demanded all parties to the armed conflict in Syria, particularly the Syrian authorities, to allow and facilitate humanitarian relief operations across conflict lines and across borders (see resolution 2139 and a presidential statement) – but with little success. In its latest resolution the UN Security Council decided – for a period of 180 days – “that the United Nations humanitarian agencies and their implementing partners are authorized to use routes across conflict lines and [specific] border crossings … in order to ensure that humanitarian assistance” reaches people in need in Syria. The Security Council also decided to establish a monitoring mechanism in neighbouring countries in order to confirm the humanitarian nature of the relief consignments.

Resolution 2165 was adopted as international humanitarian law experts continue to debate whether aid may be lawfully delivered cross-border to opposition-held territories without the consent of the host state. While some (here and here) contend that the issue is clear-cut – with consent being required – the only thing that does seem clear-cut is the lack of consensus. Others, including one of the present authors, argue a case exists for cross-border assistance without consent under certain conditions. This latter view has been supported by the former President of the International Humanitarian Fact Finding Commission and co-author of an authoritative commentary on the Additional Protocols to the Geneva Conventions, Professor Bothe, in an unpublished study provided to the UN. A group of prominent legal experts have made even bolder claims in a recently published open letter. So while international lawyers continue to sharpen their pencils, resolution 2165 supplements IHL by invoking the authority of the Security Council to fill in the gaps left by IHL’s uncertainties on cross-border aid in non-international armed conflict.
Read the rest of this entry…

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Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle

Published on August 7, 2014        Author: 

2014.08.05.Jean Baptiste photoJean-Baptiste Maillart is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).

However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory.  The post also proposes a counter-argument in favor of jurisdiction. Read the rest of this entry…

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Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of DPivnichny photoLaw in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…

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