The International Tribunal for the Law of the Sea (ITLOS), which is based in Hamburg, is holding hearings this week in  advisory proceedings before that Tribunal. The case concerns Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area  and the request for the advisory opinion was submitted to the Seabed Disputes Chamber of ITLOS by the International Seabed Authority. The request represents the first advisory proceedings before ITLOS and the first case before the Seabed Disputes Chamber. The oral proceedings are the first before ITLOS in 3 years (the last being in 2007 and the last one before that was in 2004)!

In 1991, Keith Highet who argued many cases before the International Court of Justice wrote a brief comment in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) noting how the ICJ had become busier than ever in the years immediately following the Court’s judgment in Nicaragua case. The title of this piece is adapted from his piece (The Peace Palace Heats Up: The World Court in Business Again?). The situation that in ITLOS today is no where near the same as that in the ICJ in the early 1990s but I simply wish to note that having been in the doldrums for much of its existence since it was set up in 1996. The Tribunal was created by the UN Convention on the Law of the Sea (UNCLOS) as one (of a number of means) of settling disputes under the UNCLOS. Except in one respect, it has not received much attention from potential users and very few cases have been referred to it. However, at this point in time there are 2 cases on the docket of ITLOS!! Apart from the advisory proceedings there is also a contentious case on its docket. This is the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal submitted to the tribunal in December 2009. Two cases is not much cause for celebration but these are two cases received less than 6 months apart. Is the Tribunal now in business?

Apart from requests for provisional measures and request for prompt release of vessels (the latter is the one respect in which ITLOS has received some attention from users), ITLOS has only previously had one case submitted to it on the merits. This was the Saiga Case (St Vincent and the Grenadines v. Guinea) submitted to ITLOS in 1998. I had just started out as a full time academic at the University of Nottingham and I acted as an adviser and assistant to Richard Plender QC who was counsel to St Vincent. I was involved in drafting some of the submissions to the tribunal and never imagined that ITLOS would not hold oral hearings on the merits of a dispute for another decade!  In that time, there has been no shortage of law of the sea disputes.

The dispute settlement provisions of UNCLOS (Part XV) provides for compulsory adjudication but gives parties a choice of procedures. The default choice (i.e the option to be pursued where no specific choice is made or where parties have chosen different procedures) is international abitration but parties may also use the International Court of Justice or ITLOS. Although more States have chosen ITLOS than any other option, States have refrained from referring  law of the sea disputes to ITLOS. I think that there have been 6 arbitrations initiated under UNCLOS, including an arbitration between Bangladesh and India initiated at the same time as the ITLOS proceedings before Bangladesh and Myanmar. There have also law of the sea cases before the ICJ in the period since ITLOS was created. Failure to refer cases to ITLOS suggests that States perceive disadvantages with that Tribunal when compared with the alternatives. Perhaps its biggest disadvantage is that it is untried and untested. States have some idea what they will get with the ICJ. With arbitration states pick the arbitrators and have some control over the process and this may give some comfort to States. Whether ITLOS continues to generate business might well depend on how it is perceived as performing in the 2 cases currently on its docket.

The Pope will begin a State visit to the UK on Thursday Sept 16. In anticipation of this event, some are using the occasion to highlight the tragedy concerning the sexual abuse of children by catholic priests around the world and the failure of the catholic church to deal with this scandal appropriately. As was discussed on this blog earlier this year there were calls for the Pope to be arrested on his visit to Britain and to be tried at the International Criminal Court for crimes against humanity. As Marko and I pointed out the time, there are two significant obstacles to such a prosecution: (i) the Pope is a serving head of State with immunity from arrest and prosecution in other States (see my earlier post) ; and (ii) it would be difficult to argue that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute (see Marko’s post).

Those leading the charge in the calls for the prosecution of the Pope and in the more general campaign against the Papal visit include Geoffrey Robertson QC, a leading English barrister who was a Judge at the Special Court for Sierra Leone and Oxford Professor Richard Dawkins. A central part of that campaign is now a call for non-recognition of the Statehood of the Vatican. It seems that this non-recognition is regarded by the campaigners as important at two levels.

First of all, if the Vatican is not regarded as a State then both the Vatican and the Pope will be open to proceedings in national courts around the world. This is becaue both the Pope and the Vatican will lose the immunity international law accords to States and their serving heads of State. Geoffrey Roberston is the champion of this strategy. He has a recent article in the New Statesman in which he continues to argue against the Statehood of the Vatican. While reognising the widespread international recognition of the Vatican he says:

“that the Holy See is capable of having diplomatic relations with other states does not necessarily prove that it is a state itself, andsome international lawyers have pointed out that it lacks people, territory and other qualifications necessary to be judged objectively as a state in international law. If they are right, the Pope would not be “head” of a state and could be sued for the negligence in relation to the traffic in paedophile priests, which happened on his watch over the 24 years when he ran the CDF.”

I don’t know which international lawyers he is referring to but Robertson’s arguments about how Statehood is created are erroneous. The Vatican fulfills the criteria for Statehood in international law (despite its tiny size) and this is the view of leading international lawyers. I refer readers back to my earlier post where I deal with the arguments.

Dawkins appears to have taken a different tack. He no longer argues that the Vatican is not a State but now seems to argue that the Vatican should be derecognised and its Statehood somehow taken away. (more…)

The United Nations General Assembly and Security Council has elected Joan Donoghue, from the United States, to the International Court of Justice (ICJ) (see here). Joan Donoghue will replace Thomas Buergenthal who resigned from the Court with effect from last week. Ms Donoghue is currently Principal Deputy Legal Adviser at the United States’ State Department and has spent most of her career working for the US government. As previously discussed on the blog, Ms Donoghue’s election to the ICJ means that there are now (for the first time) two women judges on the Court with Xue Hanqin of China elected to the Court in June. Both women will take the oath of office next Monday prior to the commencement of oral hearings in the preliminary objections phase of the Georgia v. Russia (Application of the Int. Convention on the Elimination of Racial Discrimination Case).

The United Nations Secretary General has recently submitted a report to the Security Council in which he sets out 7 options for dealing with piracy off the coast of Somalia. The incidence of piracy off the coast of Somalia continues to be very high.

“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . .  There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .

8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”

In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.

The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and  domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.   

The BBC reports that a number of European Union States have summoned Kenyan Ambassadors asking them to explain why Kenya failed to arrest Sudanese President Bashir when he visited Kenya last week. The International Criminal Court has issued two warrants for the arrest of President Bashir.

“They emphasized that the UK expects the government of Kenya to stand by its obligations under the Rome Statute, and as a UN member state,” a statement from the British High Commission in Nairobi said.

Should this be regarded as practice relevant for the interpretation of the relevant parts of the Statute of the International Criminal Court (Rome Statute)? Art. 31(3)a of the Vienna Convention on the Law of Treaties provides that in the interpretation of a treaty the interpreter shall take into account “subsequent practice in the application of the treaty”. Is the act of European countries with regard to Kenya and Bashir subsequent practice indicating the lack of immunity of Bashir though he is a sitting head of State? I think it is but one would have to set against it the practice of African States which seems to be the opposite. For subsequent practice to count under Art. 31 it must “establish the agreement of the parties regarding [the treaty's] interpretation.”

Sudanese President Omar Bashir visited Kenya yesterday to take part in the celebration of the new Kenyan Constitution. As readers will know, the International Criminal Court (ICC) has issued two arrest warrants for President Bashir in connnection with charges of war crimes, crimes against humanity and genocide. President Bashir’s visit to Kenya is his second visit to an ICC State party. Last month Bashir visited Chad which is also a party to the ICC Statute. Both Kenya and Chad invited Bashir and both refused to comply with the ICC arrest warrants which request State parties to arrest and surrender Bashir. ICC Pre Trial Chamber I, which issued the arrest warrants, issued decisions (see here and here)  yesterday informing the United Nations Security Council and the ICC Assembly of State Parties of the visits by Bashir “in order for them to take any measure they may deem appropriate”. In the ICC decision regarding Kenya, the Chamber stated that:

“the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party” [The decision with respect to Chad has a similar paragraph except that, interestingly, that decision only states that Chad has an obligation to cooperate - with the word "clear" being omitted from the first line of the paragraph.]

ICC judges have to take a large share of the blame for this situation. Despite the assertion that Kenya has a clear obligation to arrest President Bashir, the matter is by no means clear. As is well known, a decent argument can be made that Bashir, being a serving head of State is immune from arrest in other States (see the article by Professor Paola Gaeta which makes this case). I have argued the opposite in an article I wrote last year (see this post which refers to both articles). Despite very reasonable doubts and despite the importance of the issue, ICC judges in the Appeals and Pre-trial Chamber have refused to address the immunity question and to clarify matters (see previous post). (more…)

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…)