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ICJ Decides the Whaling in the Antarctic Case: Australia Wins

Published on March 31, 2014        Author: 

This morning the ICJ delivered its judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Australia won on almost all counts, and by 12 votes to 4. The Court’s principal reasoning is that while Japan’s whaling programme involved ‘scientific research,’ a concept that the Court did not want to define with particular precision, it was still not conducted for the purposes of scientific research, and thus violated Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The Court took a number of factors into account in making this determination, including: decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme co-ordinates its activities with related research projects. The determination in the Court’s view required an objective standard of review, rather than a deferential one which would take the state’s professed objectives at face value. It thus found that bearing in mind the design of Japan’s programme, its minor scientific output etc,  it was not set up for the purposes of scientific research. In terms of the remedy, the Court ordered Japan to revoke existing whaling permits and refrain from authorizing new ones under the current whaling programme.

The judgment summary is available here, the judgment itself and a number of separate opinions here. We will have more coverage of the case in the week to come.

 

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Crimea and (the Lack of) Continuity in Russian Approaches to International Law

Published on March 28, 2014        Author: 

On 27 March 2014, the UN General Assembly adopted a resolution calling upon states not to recognize changes in status quo of Crimea region. 100 states voted in favor, 11 were against and 58 abstained. In terms of international law, Ukraine’s continued sovereignty over Crimea is supported by the absolute majority of states, even though Crimea is now de facto annexed by the Russian Federation. In this post I want to make two points: one concerning the Russian scholarship on international law and the second on the history of Russia’s treaty practice regarding Crimea.

The first point is that the annexation of Crimea by the Russian Federation goes against pretty much everything that has been written in Russia over the last twenty years (plus during the Soviet period) on the legality of the use of military force and the right or peoples to self-determination in international law in non-colonial contexts. Suffice it to say that the Concept of the Foreign Policy of the Russian Federation, approved by President Putin on 12 February 2013, emphatically criticizes and condemns the use of military force outside the framework of the UN Charter.

My comment focuses on the Russian scholarship of international law because its most prominent representatives have until now argued that, in international law, the principle of state sovereignty clearly trumps the right of peoples to self-determination. (See e.g. I.I. Lukashuk, Mezhdunarodnoe pravo. Obshaya chast’ (2001), 280, 300; V.I. Kuznetsov, B.R. Tuzmukhamedov (eds) Mezhdunarodnoe pravo, 2nd ed. (2007), 215; G.G. Shinkaretskaya, ‘Polozhenie fakticheski sushestvuyushikh rezhimov (nepriznannykh gosudarstv)’, in: A.G. Lisitsyn-Svetlanov (ed.) Novye vyzovy i mezhdunarodnoe pravo (2010), 168-172; A.Ya. Kapustin (ed.) Mezhdunarodnoe pravo (2008), 105; A.A. Kovalev, S.v. Chernichenko (eds) Mezhdunarodnoe pravo, 3rd ed. (2008), 58.)

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New Issue of EJIL (Vol. 25: No.1) Out Next Week

Published on March 28, 2014        Author: 

The latest issue of the European Journal of International Law will be published at the end of next week. Over the course of next week, in advance of the publication of the new issue, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents of the next issue of EJIL:

Editorial

The International Society for Public Law – Call for Papers and Panels; Van Gend en Loos – 50th Anniversary; Vital Statistics; Roll of Honour; Quantitative Empirical International Legal Scholarship; In this Issue

EJIL: Keynote Debate!

Daniel Bethlehem, The End of Geography: The Changing Nature of the International System and the Challenge to International Law

David S. Koller, The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Carl Landauer, The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Articles

Maria Aristodemou, A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours

Christopher Wadlow, The beneficiaries of TRIPS: Some Questions of Rights, Ressortissants and International Locus Standi

Revisiting Van Gend en Loos: A Joint Symposium
with the International Journal of Constitutional Law (I·CON)

JHH Weiler, Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy

Eyal Benvenisti and George Downs, The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions Read the rest of this entry…

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Human Rights Committee’s Concluding Observations on the United States

Published on March 27, 2014        Author: 

Our friends at Just Security have just published an advance unedited version of the Human Rights Committee’s concluding observations on the fourth periodic report of the United States, as adopted yesterday by the Committee. The observations address many issues, but some of the highlights involve the extraterritorial application of the ICCPR, the use of drones, and NSA surveillance. For example, in para. 4:

The Committee regrets that the State party continues to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, despite the contrary interpretation of article 2(1) supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice. [the Committee thus recommends to the US to:]  Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant;

With regard to the CIA ‘enhanced interrogation’ program under the previous US administration, the Committee was especially concerned about the impunity of the perpetrators of torture and other forms of ill-treatment, and recommended the investigation and prosecution especially of ‘persons in command positions,’  and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.’ (para. 5)

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The ILC Guide to Practice on Reservations to Treaties: Some General Remarks

Published on March 24, 2014        Author: 

On 16 December 2013, by adopting resolution 68/111, the General Assembly completed a 21-year study on the codification and progressive development of the law on reservations to treaties. In its resolution, the GA takes note of the Guide to Practice on Reservations to Treaties, the text of which had been adopted by the International Law Commission (ILC) on 11 August 2011. The full text is an addendum to the 2011 Report of the ILC (available at http://legal.un.org/ilc/reports/2011/english/addendum.pdf).

A Special Kind of Instrument

I was appointed the Special Rapporteur of the ILC on the topic of “Reservations to Treaties” in 1994. With excessive confidence – or recklessness – I then declared that ‘[i]t does not seem unrealistic to think that the Commission would be in a position to adopt an initial set of draft articles, or a first draft to serve as a “guide” …, within three or four years of the subject being included on its agenda and the appointment of a Special Rapporteur” (Yrbk ILC (1993), ii(1), at 335, para. 55). I rapidly became disillusioned and realized that, as my illustrious predecessors had noted, ‘the subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity and it would serve no useful purpose to simplify artificially an inherently complex problem’ (Sir Hersch Lauterpacht, Report on the Law of Treaties, doc. A/CN.4/63, Yrbk ILC (1953), ii, at 124) moreover, the topic brings with it an emotional charge at the political level which I had underestimated and which made things even more complicated. The ‘sharia reservations’ are but the most striking example of the political sensitivity of the subject. More generally, reservations to human rights conventions, although they are by no means special legally speaking, are the object of harsh doctrinal and ideological debates. Read the rest of this entry…

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Crimea, Kosovo, Hobgoblins and Hypocrisy

Published on March 20, 2014        Author: 

One of the more remarkable aspects of the whole unfortunate Ukraine episode is the rampant hypocrisy on part of all of the major players involved in the dispute. Those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity.  On the other hand, that same Russia that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.

I am not saying that no distinctions can be drawn between the various situations I just mentioned. In particular, I agree with many of the arguments in the recent posts by Christian Marxsen and Jure Vidmar about the differences between Crimea and Kosovo, the critical one being that Crimea’s secession is the direct result of Russia’s unlawful military intervention against Ukraine, whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244, which authorized the presence of international forces in Kosovo while disabling Serbia from taking military action to suppress Kosovo’s secession. I would also note that it is more difficult to levy charges of hypocrisy against international lawyers, rather than states or politicians – and I hope that speaks well of our profession. Most international lawyers after all considered the 1999 intervention against Serbia or the 2003 invasion of Iraq to have been unlawful, and most justifiably feel the same way with regard to Russia’s intervention in Ukraine.

But even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that. Just consider President Putin’s speech justifying the annexation of Crimea by reference to Kosovo and the ICJ’s advisory opinion:

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Ukraine, Russia and Crimea in the European Court of Human Rights

Published on March 19, 2014        Author: 

Much has been written recently about the legal ramifications of events in Ukraine, but there was a new development last week when the European Court of Human Rights granted interim measures in an inter-state case brought by Ukraine against Russia. The case was lodged on 13 March, and on the same day the Strasbourg Court issued an interim measure (under rule 39) indicating that the Russian government should ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.

The decision was taken by the President of the Third Section of the Court, the Andorran judge, Josep Casadevall. Judge Casadevall went further in calling on both Ukraine and Russia to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the European Convention on Human Rights, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention. Both states are obliged to inform the Court as soon as possible of the measures they have taken in response.

In spite of the Convention preamble’s exhortation to state parties to ensure its collective enforcement, the inter-state case procedure in Strasbourg remains a rarity. It may come as little surprise that Russia has been the respondent in the three most recent such cases, each of which has been brought by Georgia. Georgia v Russia (I) relates to the arrest and detention of the Georgian immigrant population in Russia in September 2006, following the arrest in Tbilisi of four Russian service personnel on espionage charges. More pertinently to the current events in Ukraine, Georgia v Russia (II) concerns the August 2008 conflict in South Ossetia and Abkhazia, in which Russia claims to have been defending the civilian population (Russian citizens who had been granted passports) in both regions against Georgian attacks (there are also at least 2,000 individual applications pending against one or other (or both) states). A third case brought by Georgia, relating to the detention of four Georgian minors in South Ossetia, was withdrawn after they were released in December 2009, following missions to the region by the Commissioner for Human Rights.

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Crimea’s Declaration of Independence

Published on March 18, 2014        Author: 

The referendum on Crimea’s secession from Ukraine and on the subsequently planned accession to the Russian Federation has produced the expected results. An overwhelming majority has voted against Crimea remaining part of the state of Ukraine. Already one day after the referendum, the Supreme National Council of Crimea has declared the independence of Crimea and requested other states to recognize it as an independent sovereign state. And today Russia and Crimea signed an agreement on Crimea’s accession to the Russian Federation. Crimean and Russian authorities seek to justify their actions under international law, especially by reference to the International Court of Justice’s advisory opinion on Kosovo. In a statement of March 11, 2014, the Supreme Council of Crimea proclaimed that it is acting “with regard to the charter of the United Nations and a whole range of other international documents and taking into consideration the confirmation of the status of Kosovo by the United Nations International Court of Justice on July, 22, 2010, which says that unilateral declaration of independence by a part of the country doesn’t violate any international norms.” (link to press report) How do these claims hold under international law?

In evaluating the significance of the ICJ’s advisory opinion to Crimea it is important to highlight that the opinion only had a very limited scope. It did not answer the question whether Kosovo had a right to secession under international law, it did not address the question whether there is a general entitlement to secession; nor did it answer the question of the legal consequences of the declaration of independence or whether Kosovo has become an independent state. Rather, the opinion is limited to an analysis of the legality of the declaration itself (I.C.J. Reports 2010, para. 51, 56).

The Kosovo opinion relies on a brief review of norms of international law, which – as the ICJ concludes – do not generally prohibit unilateral declarations of independence. The principle of territorial integrity only applies in the relations between states, but not in regard to internal secessionist movements. However, the ICJ mentions a situation in which unilateral declarations of independence can nevertheless be in violation of international law, namely where they “were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (ius cogens)” (ibid. para. 81). The violation of international law then does not stem from the unilateral character of the declaration of independence, but from its reliance on the violation of a peremptory norm of international law.

In regard to Crimea, the declaration of independence would have been impossible without Russian troops backing up the steps towards secession. Only the fact that Ukrainian forces on Crimea have been locked in their posts and that the public infrastructure has been taken over by pro-Russian forces made it possible to hold the referendum on which the declaration of independence is based. It can therefore hardly be argued that the declaration would not rely on the use of force. According to the criteria elaborated in the ICJ’s advisory opinion, if that use of force was illegal, so was the declaration of independence.

A further question is whether Crimea has a substantive right to secession under international law. Crimean authorities refer to the UN Charter and rely on the principle of self-determination (Article 1 (2) UN Charter) which, as they argue, would assign them a right to secession. Such a claim is also not supported by international law. State practice is very reluctant to acknowledge a right to secession, since states fear that their own territorial integrity might be endangered by an empowerment of secessionist groups. Indicative for the traditional position on the right to self-determination is General Assembly Resolution 2625 (1970). After acknowledging the right to self-determination this resolution stresses that such acknowledgment may not “be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States” as long as those states internally respect the right to self-determination of peoples. The right to self-determination requires states to respect minority rights, but does not grant a sub-entity of states the right to freely chose to which state a territory shall belong. Self-determination is usually limited to internal measures, such as the right to be granted a certain status of autonomy within a state. Although one might certainly argue about the necessary degree of autonomy, it is important to highlight that Crimea already had the status of an autonomous republic under Ukraine’s constitution. In principle, the institutional arrangements for implementing the right to self-determination were in place.

The legal situation in regard to the self-determination of Crimea is therefore rather clear. But, as Nico Krisch has pointed out on this blog, the more formal, traditional norms of international law have come under pressure from what he calls liberal interventionism. In regard to self-determination, Western states have created such pressure, for example, when recognizing Kosovo as an independent state immediately after its declaration of independence in 2008. Those who argued for these exemptions referred to the history of internal conflict and the human rights violations that preceded Kosovo’s declaration of independence. A comparable history of conflict does not exist in Crimea, but since the concept of self-determination has been expanded in the past when it seemed opportune, it is not surprising that secessionist movements try to push the limits even more. Since Russia is powerful enough to pursue its interests anyway, it does not need an ultimately convincing legal justification. A justification that is at least not totally absurd, but somehow arguable, is already good enough for making a case in the international political sphere. In expanding the right to self-determination in regard to Kosovo, Western states bear their share of responsibility in enabling such arguments and in undermining international law.

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A Follow-Up on International Arbitration under Pressure

Published on March 17, 2014        Author: 

Given the dramatic events in Ukraine, investment law was unlikely to be high up on the international legal agenda these past few days. However, during the weekend, the debate about investor-State dispute settlement (ISDS) I described in my last post may have taken a new turn. On 14 March, the Financial Times reported that Germany – long the most ardent supporter of ISDS and the country with the largest number of Bilateral Investment Treaties – now pushes for the exclusion of dispute settlement provisions from the EU-US Trade and Investment Partnership. This is the relevant bit:

Germany has introduced a stumbling block to landmark EU-US trade negotiations by insisting that any pact must exclude a contentious dispute settlement provision. …. [I]n the biggest blow yet to those seeking its inclusion in the deal, Berlin has decided that it will push for the exclusion of the ISDS provisions …. A spokesman for the economy ministry in Berlin said on Friday that the government had relayed its position to officials in Brussels, where negotiators have ended a week of talks over the proposed Transatlantic Trade and Investment Partnership (TTIP). Earlier in the week, Brigitte Zypries, a junior economy minister, told the German parliament that Berlin was determined to exclude arbitration rights from the TTIP deal. “From the perspective of the [German] federal government, US investors in the EU have sufficient legal protection in the national courts,” she told parliament. The German position pits Berlin against the commission, the US and business groups. All of them argue that the transatlantic deal is an opportunity to update arbitration rights that already feature in existing bilateral investment treaties and are often open to abuse.

 And, as the FT went on, the German position is really something quite new:

Nicole Bricq, France’s trade minister, has raised concerns before over the ISDS provision. Germany has until now backed its inclusion in the new pact. But Berlin has also been confronted with growing public scepticism in recent months over the transatlantic deal as a whole, and the ISDS provision in particular. At a press conference to mark the close of the fourth round of negotiations on Friday, Dan Mullaney, the leading US negotiator, declined to comment on the German decision. Ignacio Garcia Bercero, the EU’s chief negotiator, also refused to comment on it. But he pointed out that the EU’s original mandate to negotiate specifically included an ISDS provision and had been approved by member states, including Germany. “We are working on the basis of the mandate that has been given to us,” said Mr Garcia Bercero.

So, Alessandra Asteriti may be right (in the comments to my previous post) in saying the ‘ground is shifting’.

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Azemi v. Serbia in the European Court of Human Rights: (Dis)continuity of Serbia’s De Jure Jurisdiction over Kosovo

Published on March 13, 2014        Author: 

Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.

On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.

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