Over the next couple of weeks, we will be hosting a discussion of articles in the latest issue of the European Journal of International Law. As readers will know, this year marks the 20th Anniversary of EJIL and each issue of the journal includes a symposium on selected areas of international law. In the latest issue (issue 2), there is a symposium on the Use of Force.  EJIL:Talk! will host an online discussion of three articles in that symposium. Next week we will discuss Christian Tams’ article “The Use of Force Against Terrorists”. We will then host discussions of Ken Anderson’s piece “The Rise of International Criminal Law: Intended and Unintended Consequences” and Dino Kritsiotis’ article: “Close Encounters of a Sovereign Kind”. All of these articles will be freely available on EJIL.org and on the OUP EJIL site.

Professor Joseph Weiler’s editorial for this issue of EJIL points out that:

Dino Kritsiotis of the University of Nottingham and Ken Anderson from American University in Washington DC may have taken on classical topics – but fasten your seat belts and prepare yourself to be challenged. Christian Tams from Glasgow and Tullio Treves of Milan (who serves, too, as Judge of the International Tribunal for the Law of the Sea) deal with the less classical: the use of force in fi ghting terrorists and pirates respectively. Keep those seatbelts fastened. We were not interested in the ‘ Law as it Stands ‘ style pieces. These are all pieces with a view, with a thesis. We expect some disagreement.

EJIL:Talk! is precisely the forum where we expect some of that disagreement to emerge and different points of view to be thrashed out. Commentators on the EJIL pieces will include Kimberley Trapp (University of Cambridge), Gerry Simpson (the London School of Economics and the University of Melbourne), Brad Roth (Wayne State University) and Nikolas Stürchler (Ministry of Foreign Affairs, Switzerland and author of The Threat of Force in International Law).

As always readers are invited to participate in this discussion by posting comments.

After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts. 

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. (more…)

A             Background

Fair and equitable treatment provisions are found in almost all bilateral and multilateral investment treaties and many international investment agreements. Throughout the course of the last decade, this treatment standard has been frequently invoked in investor-State arbitrations. Under its aegis, tribunals have developed a number of vaguely defined sub-categories, or what have been referred to as ‘facets’ or ‘components’ of the standard, such as the obligation of the State to refrain from acting in an arbitrary manner, to afford justice and due process to foreign investors, to act transparently, and to respect the legitimate expectations of the investor (see comment entitled ‘Fools Gold? Legitimate Expectations as Understood in Glamis Gold v USA‘). Despite such attention, the precise application of and relationship between these components remains vague and elusive.

The task of interpreting and applying fair and equitable treatment was made more complex by the following series of events.

In 1999, an American investor brought a claim under NAFTA‘s investor protection provisions. The investor alleged, inter alia, that Canada’s regulations with respect to the importation of softwood lumber violated Article 1105 of NAFTA. Article 1105(1) provides that ‘Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.’ At the time of the arbitration, trends in the decisions of arbitral tribunals favoured interpreting fair and equitable treatment provisions as either an autonomous treaty provision or a standalone principle found in customary international law. The tribunal favoured the former, finding for the investor, but leaving the question of damages to be assessed at later date by a new tribunal.

Following the decision, and in a dramatic twist, the NAFTA parties issued a joint interpretive note clarifying their view of both Article 1105, and fair and equitable treatment and full protection and security. The note read as follows:

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Much has been made of Ecuador’s recent withdrawal from the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID’). The notice has the effect of terminating the jurisdiction of the Centre effective 7 January 2010. The most reported justification for this move is the perception in many Latin American countries that international investment arbitration is biased towards investors (see comment entitled ‘International Investment Arbitration: Poisoned at the Root?‘), and more specifically, outstanding international investment claims against Ecuador in the range of $10 to $12 billion US.

However, on review of Ecuador’s international legal position, and, more specifically, international legal obligations generated by her outstanding bilateral investment treaties, it seems that withdrawal from ICSID, whilst perhaps remaining a poignant political statement, offers less than might first be thought in terms of radical change with respect to the country’s exposure to investment claims.

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Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent.  Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.

The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.

 Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included:  How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?

 A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage. (more…)

Seunghyun Sally Nam is 3rd Secretary for the Korean Peninsula Peace Regime Division at the Ministry of Foreign Affairs and Trade, Republic of Korea. She is writing in her personal capacity and her views do not necessarily represent those of the South Korean government.

In his recent post, Dapo Akande refers to a recent article by Gordon Chang in which Mr Chang argues that North Korea’s announcement that it is no longer bound by the 1953 Armistice Agreement means that the Korean War has resumed as a matter of law. The issue comes down to whether North Korea’s announcement that it ‘will not be bound by the armistice’ terminates the armistice or not. Gordon Chang makes his assertion based on the idea that the Korean armistice agreement is subject to termination by the announcement of either party. However, Article 62 of the Armistice Agreement states that the Armistice agreement is effective until it is expressly superseded either by mutually acceptable amendments and additions or provision in an appropriate agreement for a peaceful settlement. Article 61 also states that ‘amendments and additions to this Armistice Agreement must be mutually agreed by the Commanders of the opposing side’.

Gordon Chang mentions in his article that the U.N. Command, a signatory to the armistice, responded to North Korea’s argument by insisting that the Armistice is in force and by referring to the termination provision. However, the Korean Armistice Agreement does not have a termination provision. The two provisions which I mentioned in the above are the only provisions which regulate any ‘amendments and additions’ to the agreement. (more…)

Readers may wonder how they missed such a momentous event as the resumption of the Korean War. Don’t go scurrying to the TV or start clicking on those news sites just yet! There has been no use of force on the Korean Penninsula. However, it has been claimed that, as a matter of law,the Korean War has resumed. The argument was made in the Wall Street Journal, earlier this month, by Gordon Chang, an American  lawyer who writes on Chinese and Korean issues. Chang’s argument is that North Korea’s announcement on 27 May this year that it will no longer be bound by the 1953 Armistice Agreement which ended the Korean War (1950-53) means that the armistice is ended and that “North Korea . . . has resumed the Korean War.”

He makes this argument in order to provide legal justification for the US to circumvent UN Security Council Resolution 1874 (adopted after North Korea’s nuclear test in May) and to take a more robust approach to inspecting North Korean vessels. Chang’s argument is a dangerous one since if it were correct, it would not only justify the acts suggested by Mr Chang but would justify a broader use of force against North Korea.  In some ways, the argument is reminiscent of the arguments used to justify the legality of the 2003 Iraq War. There has been a breach of an agreement and so a prior war is on again! The argument was wrong then (when applied to breach of a Security Council resolution) and one is wrong now (when applied to a declaration of termination of an armistice). (more…)

Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London.

In two parallel decisions of March of this year (Case C-249/06 Commission v Sweden and Case C-205/06 Commission v Austria) the European Court of Justice ruled that Sweden and Austria are in breach of their EC Treaty obligations by maintaining bilateral investment treaties with third countries which may interfere with the EU’s powers to restrict capital movements.  This is the Court’s first venture into the booming international investment law field.  It should be seen in its broader setting. The Treaty of Lisbon purports to extend the scope of the EU’s common commercial policy to matters of “foreign direct investment”.  Perhaps in anticipation of this significant expansion of Community competence, the Commission is becoming active in this area.  It considers that bilateral investment treaties between Member States and third countries are incompatible with Community law, in so far as they contain a clause on the free transfer of payments connected with an investment.  Such a clause, whilst in principle compatible with the free movement of capital between the Community and third countries, could create problems were the Community to introduce restrictions pursuant to Articles 57(2), 59 and 60(1) of the EC Treaty.  There is as yet no relevant legislation under any of these Treaty provisions, but the Commission is concerned that the future exercise of Community competence could be hindered.

The Commission therefore brought proceedings against Sweden and Austria, referring to a series of investment treaties which they have concluded.  Those treaties come within the scope of Article 307 EC, pursuant to which (a) rights and obligations arising from agreements, concluded before accession, between Member States and third countries are not affected by the EC Treaty, and (b) Member States shall take all appropriate steps to eliminate any incompatibilities with the EC Treaty.  Sweden and Austria were alleged not to have removed the incompatibility between their investment treaties and EC law.  What the Commission would like to see is a so-called Regional Economic Integration Organisations clause in these agreements: a clause which allows and safeguards EC measures. (more…)

Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). 

One of the most interesting decisions of the International Criminal Court on confirmation of charges has passed by with little comment so far. Whilst the Al-Bashir Arrest Warrant decision has received very considerable attention (for example – shameless self-promoter that I am - in the symposium in the most recent Journal of International Criminal Justice), the lesser-known  confirmation of charges decision in the case against former Congolese Vice-President Bemba (in relation to alleged crimes in the Central African Republic) raises some extremely interesting issues deserving of comment. For example, the decision (Prosecutor v Jean-Piere Bemba Gombo, decison of June 15, 2009) has interesting things to say in relation to definitions of crimes, their contextual elements, and the mental element as provided for in Article 30 of the ICC Statute. Indeed far too many matters to deal with in any meaningful way in a post of this nature. 

 As such, this post will concentrate on only one aspect of the decision, command responsibility, as this is the first time this principle of liability (and I call it as such deliberately) has been the subject of significant comment by the ICC. Its decision on point is important, not only for the comments the Pre-Trial Chamber make directly on the issue, but also because it is indicative of the extent to which the ICC is looking, whilst showing considerable respect at times to the jurisprudence of the ICTY and ICTR, to create a separate regime of what might be termed ‘Rome law’. Whether this is a good idea or not, or whether we might see a problematic fragmentation of international criminal law from the multiplicity of Tribunals applying different definitions of international criminal law will be (briefly) returned to at the end. (more…)

On Monday, the ICJ delivered its judgment in the Costa Rica v. Nicaragua case, concerning navigational and related rights on the river San Juan (Registry summary; judgment). The case itself is not terribly important in the grand scheme of things, but upon reading the judgment I came across several questions of broader import that our readers might find of interest.

But first just to say a bit about the facts of the case for the sake of greater comprehension. The river San Juan is on the border between Costa Rica and Nicaragua. The border, however, does not run along the thalweg of the river, as is usually the case with river borders, but is set by treaty to run along the Costa Rican coast. Thus, the entire river belongs to Nicaragua as sovereign. The question raised by the case is what are the navigational and related rights on the river of Costa Rica and its riparian communities, under the terms of the 1858 Treaty of Limits between Costa Rica and Nicaragua. The principal of these rights was set by Article VI of the Treaty, giving Costa Rica a perpetual right of free navigation ‘con objectos de commercio’.

There was a dispute between the parties as to the meaning of this last phrase, with Costa Rica claiming that it meant ‘for the purposes of commerce’, while Nicaragua maintained that it meant solely ‘with the articles of commerce’, i.e. with merchandise (para. 45). On this issue, the Court sided with Costa Rica (paras. 50-56), and the judgment is generally speaking more in its favor than in Nicaragua’s. The background to this dispute is at least partly one of economic self-interest: Costa Rica claimed that this phrase covered not merely trade in goods, but also trade in services, such as the transportation of tourists and passengers on the river by Costa Rican ships. Nicaragua, on the other hand, asserted that the phrase covered only the trade in goods.

This brings me to the issues of general import raised in the case. First, and most important, is the Court’s approach to treaty interpretation. In that regard the Court gave short shrift to its long-standing dicta that restrictions on state sovereignty are not to be presumed lightly (paras. 47-48), and it also made several fascinating remarks on evolutionary treaty interpretation, to which I will devote the bulk of this post.

Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court considered to have exhaustively regulated the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanated from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.

Third, there is the Court’s willingness the establish, with very little evidence, the existence of a bilateral customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court derived such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest derived not from the lack of practical significance of the very small amount of fishing involved, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.

Indeed, the Court found such a customary right even though Costa Rica never claimed, until the case came to the Court, that it had such a right in its relations with Nicaragua. The Court justified its position by saying that the paucity of evidence of custom is explained by the remoteness of the area and its small population (para. 141). Now, we all know that in some cases the Court does not apply the criteria for formation of custom in a very rigorous way (e.g. regarding the use of force in the 1986 Nicaragua case), while in others it is conversely extremely hostile to the existence of custom (e.g. in the Asylum or the North Sea Continental Shelf cases). But I don’t think that I’ve ever seen the Court establish a customary rule, even a bilateral one, in quite so off-hand a way as it did here. In that regard, I find the separate opinion of Judge Sepulveda to be more persuasive.

But now onto the juiciest part of the judgment, the Court’s approach to evolutionary treaty interpretation. (Warning and apologies in advance for any overly-theoretical rambling).

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