Following my posts (here and here) about elections to the International Court of Justice of judges who had previously been on another international tribunal, I have another question for readers. Giorgio Gaja who was elected to the ICJ last month (see here) is currently an ad hoc  judge in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case. He had also been ad hoc judge in three previous ICJ cases. The question is:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Note that I am asking for ICJ judges who were appointed ad hoc judges before they became full time judges on the ICJ. I am excluding those ad hoc judges who were appointed as such after they had been ICJ judges. There are many in the latter category. Gilbert Guillaume, former ICJ president is currently an ad hoc judges in three cases now before the Court. (more…)

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

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In my post of yesterday I tried to come up with a bit of international law trivia. I asked readers to come with names of ICJ Judges who had been on international tribunals prior to their election to the ICJ. You can see the answers readers came up with in the comments to that post. Many thanks to Martin for noting that Judge Buergenthal was at the ICTY previously. Thanks also Wim Muller for pointing out that Mohamed Bennouna, also currently on the ICJ, also had prior experience of another international tribunal before election to the ICJ. This means that when Judge Sebutinde takes up her position at the Court, there will be three ICJ judges (together with Judge Antonio Cancado Trindade) serving on the bench at the same time who had earlier been judges at other international tribunals. This compares with around 5 previous ICJ judges who had served on international tribunals prior to election to the ICJ.

Thanks also to Tobias and Markos for the names of Lord McNair and Judge Mbaye. However, as Tobias and Markos note, these are examples of Judges going on to international tribunals after they left the ICJ.

The names of other ICJ judges with prior international judicial experience are Sir Humphrey Waldock, who was a Judge and President of the European Court of Human Rights prior to going to the ICJ and President Guerrero who was the first President of the ICJ. The last one is particularly tricky as Judge Guerrero was the last President of the Permanent Court of International Justice. Judge Guerrero was also Vice President of both the PCIJ and the ICJ. Though the ICJ was the continuation of the PCIJ they were technically separate courts so he counts as one who was another international tribunal prior to election to the ICJ.

Other Judges with experience of international judicial or quasi-judicial tribunals prior to going to the ICJ would be Judge Petren (Sweden) who had been a member (and President) of the European Commission of Human Rights and a Judge at the United Nations Administrative Tribunal. Incidentally, Waldock had also been member and President of the European Commission of Human Rights before going to the ECtHR and the ICJ. Judge Higgins had also been a member of the Human Rights Committee before election to the ICJ. I don’t count judges who had served on international arbitral tribunals or conciliation commissions as they were not standing courts or tribunals.

It is interesting to see that most of the British Judges at the ICJ have either had prior international judicial experience or gone to an international tribunal after leaving the ICJ. The exceptions are Hersch Lauterpacht (who sadly died while at the ICJ) and Robert Jennings.

This week the ICC issued two decisions regarding whether Sudanese President Omar Al Bashir is immune from arrest in ICC parties (see here and here). The decisions were issued in the context of proceedings considering whether Malawi and Chad had breached their obligations o f cooperation under the Rome Statute by failing to arrest Bashir when he visited those countries in late 2011. The Malawi decision, issued a day before the Chad decision, is the first detailed decision regarding the immunity of Bashir. In summary, the Pre-Trial Chamber held that:

“Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.” (para. 43)

The Chamber therefore held that Malawi (and Chad) by failing to arrest and surrender Bashir had failed to comply with their obligations to cooperate with the ICC. Moreover, the Chamber held that it has “the sole authority” to decide whether immunities are applicable in a particular case (para. 11) and that by failing to bring the issue of immunity to the ICC for determination there had been a further breach of the obligation of cooperation.

As readers will surmise from my previous posts on the issue (here, here, here, and here), I agree with the result reached by the Pre-Trial Chamber (that Bashir is not immune from arrest) but I disagree with the reasoning. In particular, I think the Court is wrong to suggest that there is a general exception to Head of State immunity in prosecutions before international courts. Also, even if that were true, as Paola Gaeta has demonstrated, it would not follow that as a matter of international law national authorities were then free to depart from the immunity which customary international law grants to heads of States from arrest by national authorities.

Better Late than Never

Before I get to the substance of the decision, I would like to say that it has taken far too long for the ICC to issue a detailed decision on the immunity issue. The decisions of this week come nearly three years after the ICC Pre-Trial Chamber first issued an arrest warrant for Bashir in March 2009 and after the ICC has on several occasions reported States to the UN Security Council for failing to cooperate with regard to Bashir’ arrest and surrender (see previous post here). In previous posts (see here and here) over the last couple of years I have argued that it was most unfortunate that the ICC judges had chosen to avoid dealing with the immunity issue since: there was a reasonable argument that Bashir was immune from arrest as a head of State of a non-party; the African Union (AU) had made this precise argument in issuing several decisions calling on AU members States not to cooperate with the Court; the resulting tension with African States was proving somewhat damaging to the Court; and most importantly Article 98 of the Court’s Statute requires the Court to deal with the issue of immunity. In the decision of the Pre-Trial Chamber on Bashir’s arrest warrant (and in the decision regarding the Gaddafi Arrest Warrant), the Chamber had stated that:

“the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.” Para.  41

So it had addressed the question of the position of heads of State but it had failed to deal head on with the customary international law of immunity and the interplay between Articles 27 and 98 of the ICC Statute which both deal with immunity and appear, at first glance, to be contradictory. Better late than never. But getting there late is not really good enough. Ignoring this sensitive issues has itself contributed to the tensions with African States and to the feeling that the position of those States is just being ignored. (more…)

In my previous post on the election of Julia Sebutinde I noted that she is currently a judge at the Special Court of Sierra Leone. This got me thinking about whether there were other judges elected to the ICJ having previously served on another international tribunal. It is not uncommon for persons who have served as senior national judges to be elected to the ICJ. Julia Sebutinde is one having been a high court judge in Uganda. On the current ICJ bench, Sir Kenneth Keith (New Zealand) and Ronny Abrahams (France) have also had national judicial experience at the highest levels. There have also been cases of ICJ judges then going on to serve in other international tribunals after leaving the ICJ. Mohammed Shahabuddeen went to the ICTY after leaving the ICJ. Sir Gerald Fitzmaurice went on to become a judge at the European Court of Human Rights after leaving the ICJ. Also judges have moved from the ad hoc international criminal tribunals to the ICC.

On the current ICJ bench there is one judge that had served on an international tribunal prior to election to the ICJ. This is Antônio  Cançado Trindade who had been President of the Inter-American Court of Human Rights? But have there been others? One suspects that with the proliferation of international tribunals we will see more cases of ICJ judges having prior experience of working as an international judge. In the past, with few international tribunals, the opportunities were limited. Having said this Judges Cancado Trinidade and Sebutinde are not the first ICJ judges to have been judges on other international tribunals before going to the ICJ. (more…)

Lavanya Rajamani is a Professor of International Law at the Centre for Policy Research, New Delhi, India.

The Durban climate conference, marked by tension, high drama and sleepless nights, arrived 36 hours after the scheduled end of the conference, at a set of historic decisions. These include decisions to implement the Cancun Agreements, operationalize the Green Climate Fund, extend the Kyoto Protocol for a second commitment period, and launch a new process to negotiate a future climate regime. This was a ‘package deal’ in that without an agreement to negotiate a future climate regime, the EU would not have agreed to a Kyoto second commitment period.

Parties launched a process titled the Durban Platform on Enhanced Action (see here) to negotiate ‘a Protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all.’ This instrument is scheduled to be adopted in 2015, and implemented from 2020. Although the media has interpreted this decision to mean that all ‘major emitters,’ developed and developing alike, will be legally bound to GHG emissions cuts from 2020, the tortured language used in this decision masks a vast terrain of contestations.

In the lead up to Durban several developing countries were reluctant to endorse a legally binding instrument (see previous post), however India alone held out till the last hours of the conference. India insisted that agreeing to a legally binding instrument was a Cabinet-mandated red line that it could not cross. It could agree at best to launch a process towards a ‘legal outcome’  – which would leave the precise legal form of the instrument open. A ‘legal outcome’ could encompass legally binding instruments as well as Conference of Parties decisions, which although operationally significant, are not, save in the exception, legally binding. This formulation lacked the clarity and ambition that the EU, the Alliance of Small Island States, the Least Developed Countries, many Latin American countries, and even India’s BASIC allies, Brazil and South Africa, were seeking. Critically, this was not sufficient for the EU to endorse a second commitment period. After a fast and furious ‘huddle’ in the final hours of the conference, India agreed to substitute the term ‘legal outcome’ with a marginally less ambiguous term, ‘agreed outcome with legal force,’ thus triggering the acceptance of a Kyoto second commitment period by the EU and its allies. Much of the details on Kyoto will be worked out in 2012, but Durban did give it a new lease of life.

Unlike the terms ‘Protocol’ and ‘another legal instrument’ the term, ‘agreed outcome with legal force’ does not reflexively signal a legally binding instrument. Nevertheless the overwhelming implication of these formulations as well as the political machinations surrounding it is that we are moving towards a legally binding regime. And, one in which the nature and extent of differentiation in favor of developing countries will shift considerably from the existing regime that is rooted in the principle of common but differentiated responsibilities and respective capabilities.

The Durban Platform decision does not contain a reference to ‘equity’ or ‘common but differentiated responsibilities.’ This is no benign oversight.  (more…)

Yesterday the United Nations General Assembly and the Security Council elected Julia Sebutinde to be a Judge at the International Court of Justice (see UN press release). Readers may recall from an earlier post that the Security Council and General Assembly elected four judges to the ICJ last month but most unusually failed to agree on the fifth judge to be elected. The ICJ Statute requires that candidates obtain an absolute majority in both the Security Council and the General Assembly. After several rounds of voting Judge Abdul Koroma (Sierra Leone), who is the currently the longest serving judge at the ICJ, consistently obtained a majority in the Security Council but Judge Julia Sebutinde consistently got more votes in the General Assembly. As I reported in my previous post, the Statute provides a procedure that may be used to resolve this deadlock. However, both organs chose to postpone voting till a later date and yesterday Judge Sebutinde again won in the General Assembly but this time also won in the Security Council. Judge Sebutinde got 97 votes in the General Assembly to Judge Koroma’s 93 and she obtained 9 votes in the Security Council to Judge Koroma’s 6.

Judge Sebutinde was the candidate endorsed by the African Union, and her country Uganda had expected that she would receive the support of African countries. Indeed, it has been reported that Uganda and Sierra Leone had an agreement that Sierra Leone would withdraw the candidature of Judge Koroma. Sierra Leone did not do this and Judge Koroma proved to be a popular candidate when the elections came round.

Judge Sebutinde is third woman elected to the ICJ in the space of just 18 months (here and here), which is great news, especially as there had only been one female judge prior to this in the entire history of the ICJ and PCIJ (apart from a couple of female ad hoc judges). Judge Sebutinde is currently a Judge at the Special Court for Sierra Leone where she was Presiding Judge in the trial of former Liberian President Charles Taylor. Before this, she was a Judge in the Ugandan High Court.

Lavanya Rajamani is a Professor at the Centre for Policy Research, New Delhi, India. She was previously University Lecturer in Environmental Law, University of Cambridge and Fellow & Director of Studies in Law at Queen’s College, Cambridge. She is co-editor of  ’Promoting Compliance in an Evolving Climate Regime’ (CUP, 2011), and ‘Climate Change Liability: Transnational Law and Practice’ (CUP, 2011). She has worked as a consultant to the UN Framework Convention on Climate Change (UNFCCC) Secretariat, the Danish Ministry of Climate Change and Energy, the UNDP, the World Bank, the Alliance of Small Island States, and the International Institute of Sustainable Development. She has worked on and followed the climate negotiations since 1997, in different capacities, including as a negotiator for the Alliance of Small Island States during the negotiations for the Marrakech Accords, and as a legal advisor to the Chair of the Ad Hoc Working Group on Long term Cooperative Action under the FCCC – the inter-governmental group tasked with arriving at an agreed outcome on climate change post-2012 – in the lead up to the Copenhagen Climate Conference, 2009.

Ever since the Bali Action Plan, 2007, launched the current phase of negotiations under the Framework Convention on Climate Change (FCCC), parties have been dithering over the legal form that the “agreed outcome” to these negotiations should take. The options range from protocols and amendments that are legally binding and can deliver the benefits of consistent application, certainty, predictability and accountability, to soft law options such as decisions taken by the Conference of Parties (COP), which, while operationally significant, are not, save in the exception, legally binding. This divisive issue has taken centre-stage at the ongoing Durban Climate Change Conference. 

Many countries, including the host country, South Africa (part of the BASIC group of Brazil, South Africa, India and China) have coalesced in favour of a legally binding instrument to crystallise mitigation and other commitments that will chart the world through to a 2°C or even 1.5°C world. The Alliance of Small Island States and other vulnerable countries on the frontlines of climate impact believe that anything short of a legally binding instrument would be an affront to their grave existential crisis. The EU has indicated that they will offer the Kyoto Protocol a lifeline to ensure its survival for a transitional commitment period, conditional on the adoption at Durban of a deadline-driven roadmap towards a “global and comprehensive legally binding agreement” under the FCCC. This agreement, applicable to all, is intended to take effect post-2020.

Brazil, China and India argue that extending Kyoto is a legal obligation, not a bargaining tool to wrench further concessions from developing countries. These countries are, if at all, only willing to consider a mandate for a new legally binding instrument after the completion of the review of the long-term global goal of 2°C slated for 2015. The United States, nervous about the gathering momentum in favour of a Durban mandate, has indicated that any new legally binding instrument, if and when it becomes necessary, must incorporate symmetrical mitigation commitments, at least in form, for all significant emitters. In this they are joined by the Australia, Japan, New Zealand, and others. Needless to say, the BASIC countries will find such symmetry unpalatable.

Whatever the merits of these positions, it is worth stepping back from the ever-dire politics of the blame game, and exploring what legally binding instruments do that COP decisions cannot; why, if at all, we need such an instrument; and why developing countries, may have little to fear and much to gain from a legally binding instrument. (more…)

Antonios Tzanakopoulos is Lecturer in International Law at UCL Laws and the University of Glasgow.

On Monday, the International Court of Justice delivered its judgment in the curious case between ‘the former Yugoslav Republic of Macedonia’ (hereinafter: ‘fYR Macedonia’) and the ‘Hellenic Republic’ (hereinafter: ‘Greece’). In this case, fYR Macedonia (appearing before the ICJ for the first time) complained that Greece, in objecting to fYR Macedonia being invited to join NATO in 2008, had violated its obligation under the Interim Accord of 13 September 1995 ‘not to object’ to fYR Macedonia joining any international organizations, as long as it applied under its ‘provisional designation’ provided for in Security Council Resolution 817 (1993). The judgment brings up many interesting questions. Apart from matters of jurisdiction and admissibility, perhaps the most interesting issues in the Court’s judgment are (i) its approach to treaty conflicts; (ii) the relationship between the grounds for termination of treaties under the law of treaties and defences available under the law of state responsibility; and (iii) its elucidation of the obligation to negotiate in good faith. Some of these points are taken up after a brief introduction to the dispute.

I. Background to the Dispute

The background to the case before the ICJ is a much older, long-running dispute between the two States as to fYR Macedonia’s name. It is a dispute in which national(istic) sentiment runs high on both sides, and this has caused it to be blown out of all proportion and to have lingered for way too long. ‘Macedonia’ is the name of a historical and geographical region that extends mainly between Greece, Bulgaria, and fYR Macedonia (the precise percentages, if there can be such a thing, depend on who you ask—historical Macedonia was never precisely delimited, as one would no doubt expect). It is also the name of an administrative region in northern Greece, and it was the name of a constituent republic of the Socialist Federal Republic of Yugoslavia, which, upon the SFRY’s dissolution, hoped to continue using the name it had as a constituent entity.

Greece took exception to the use of the name of one of its administrative regions and the irredentist claims made in the fYR Macedonian constitution and by the fYR Macedonian authorities in an attempt to galvanize national solidarity in the midst of a civil war. It responded with several forceful (if non-forcible) measures on the international level, blocking the small country’s accession to international organizations and imposing economic sanctions (for more details see here). Attempts were made to normalize the relationship between the two States in the autumn of 1995, with the adoption of an Interim Accord. The 1995 Interim Accord, besides its unique language (it refers to Greece and fYR Macedonia as the ‘party of the first part’ and the ‘party of second part’ respectively, following which the Court refers to the two States as the ‘respondent’ and ‘applicant’ throughout the judgment), established a number of obligations for the two States: fYR Macedonia had to cease using a symbol that Greece considered part of its cultural patrimony, for example, and undertook that nothing in its constitution could be interpreted as an irredentist claim (Arts 7(2) and 6); both parties had to cease any propaganda, etc, and to negotiate in good faith as to fYR Macedonia’s definitive name (Arts 7(1) and 5(1)); and Greece, for its part, agreed not to object to fYR Macedonia’s applications to join international organizations, as long as the latter applied under the provisional designation stated in para 2 of Security Council Resolution 817 (1993), namely as ‘the former Yugoslav Republic of Macedonia’ (Art 11(1)). The ‘artist formerly known as Prince’, who also changed his name in 1993, did not bother commenting on this development—as an aside it is worth noting that Prince did resolve the issues with himself about his name in 2000.

It is this last provision that led to fYR Macedonia’s application to the ICJ. fYR Macedonia had been hoping to be invited to accede to NATO during the 2008 Bucharest Summit—under its provisional designation (fYR Macedonia) as envisaged in the Interim Accord, just as it had joined a number of other international organizations previously. Such invitation was not extended, however, and fYR Macedonia accused Greece of objecting to its accession to NATO. It filed an application with the ICJ, alleging that Greece had violated its obligation not to object under Art 11(1) of the Interim Accord, given that fYR Macedonia had sought to accede to NATO under its provisional designation. (more…)

It has now been announced by the International Criminal Court that Fatou Bensouda, the current ICC Deputy Prosecutor will be the sole candidate for election to be Prosecutor of the ICC. The decision to nominate her as the sole candidate This means that Fatou Bensouda will be the next ICC Prosecutor.  The elections will take place in December and she will take over from Luis Moreno-Ocampo in June next year. As I stated in a previous post of a couple of days ago the list of candidates has been whittled down from the four recommended by a search committee and there was a strong feeling that the next prosecutor should be African. For the reasons that I gave in that earlier post Fatou Bensouda seems to be an excellent choice and has been the front runner in this race for quite some time. She is from Gambia (though she studied law in Nigeria – in fact at the same University I went to)  and was the candidate endorsed by the African Union. However, she has also been vigorous in defending the  prosecution by the ICC of Africans. I had the pleasure of speaking with her at a workshop on the ICC held in Botswana (and also here) in July of this year . In her speech, “Does the ICC Target Africa: Is the ICC Selectively Prosecuting Cases?”   she said:

“Let me turn squarely to the question you would like answer today. All the persons accused by the ICC are African. That is true. Why? Because the Rome Statute says that we should select the gravest situations under the Court’s jurisdiction. There are also more than 5 million African victimes displaced, more than 40,000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of African victims raped. In Northern Uganda, the LRA displaced more than a million people, and abducted boys and girls and forced them to kill. We cannot turn a blind eye to justice for 2.5 million people in Darfur, for 2 mllion victims in the DRC. The Ituri region in DRC is still plagued by militia killings, looting and raping. These African victims are calling for more ICC intervention, not less.”

She then went on to note that in six of the situations currently before the Court, African leaders had requested ICC intervention.

She is taking on a job with immense responsibilities but appears very well suited to the task. We wish her all the very best!