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…)

I was asked by the organizers of the 2010 ILA Conference in the Hague to put up this notice, and do so with pleasure. The Conference starts in a couple of days, and I’m sure it’ll be a wonderful event.

The 15^th – 20^th of August 2010 marks a historic moment for the Netherlands Society of International Law as it brings together over 600 lawyers from all over the world to discuss how international law and institutions can and should contribute to solving global problems.

The event – the 74^th Biennial Conference of the International Law Association – is being hosted in the Hague by the Netherlands Society of International Law as part of the events marking the 100^th year of its existence. The wide range of topics to be discussed at the panels of the conference include the international accountability of government lawyers for advice that  leads their governments to violate international law, the tensions between peace/reconciliation and justice before the International Criminal Court (ICC), the International Court of Justice Advisory Opinion in the Kosovo Case, current international law on piracy and the argument that Somali pirates are freedom fighters, the role of international law in global economic governance and financial supervision after the financial crisis, the ICC as either a court of last resort or simply a means for guaranteeing domestic proceedings are exactly like the ICC’s,  the enforceability or otherwise of the Millennium Development Goals and the role of international law in realizing those goals, the interplay between international human rights and national law in domestic litigation (plaintiffs’ and defendant’s perspectives), access to justice at the domestic level and the tension between local/national and international ideas of justice, the necessity or otherwise of an Organisation for the Prohibition of Biological Weapons (OPBW), the Sudan Abyei Arbitration as an example of international law arbitration as conflict prevention, Islamic finance and in general the role of religion in the making and practicing of law, forum based limitations to parties’ freedom of choice of applicable law in arbitration and a-national or transnational law as a possible solution thereto, and the relationship between the Responsibility to Protect (R2P) and the use or non-use of force in international law.

Alongside the panel discussions, there will be Open Working Sessions of the Committees and Study Groups of the ILA at which the various Committees and Study Groups will discuss the reports of their research on a variety of contemporary issues of international law. Committees which will be discussing their work include the Committees on Feminism and International Law, Islamic Law and International Law, Space Law, Non State Actors, Reparation for Victims of Armed Conflict, International Securities Regulation, International Law on Sustainable Development, Rights of Indigenous People, Legal Principles Relating to Climate Change, the Teaching of International Law,  International Civil Litigation and the interests of the public, Cultural Heritage Law, International Commercial Arbitration, International Criminal Court, International Family Law, International Human Rights Law, International Law on Biotechnology, International Protection of Consumers, International Securities Regulation, International Trade Law, Outer Continental Shelf, Recognition/Non-recognition in International Law and Responsibility of International Organizations. Most of the Committee and Study Group reports are already available on the ILA website and can be downloaded via http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm.

Updates on the conference will be available on the conference blog which can be accessed from the website of the conference (http://www.ila2010.org). Reports and resolutions adopted at the conference will be available later.

Conference details

Venue:  The Hague University of Applied Sciences (Haagsche Hoge School),

Johanna Westerdijkplein 75, 2521 EN, The Hague

Formal Opening: Monday, 16^th August at 9 a.m.

 Christian J. Tams is Professor of International Law at the Univeristy of Glasgow. His publications include Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005).

The International Court of Justice’s Kosovo opinion of 22 July had been much expected. It was one of the not so frequent instances which the world (as opposed to State parties, or a small group of international lawyers) was waiting for the world court to speak. Great expectations can lead to great disappointment. And judging from the first round of reactions and responses on this blog and in other fora, there is indeed a feeling of disappointment: of course among those who expected a different outcome, but also among those who would have hoped for a fuller discussion of the legal issues raised by the unilateral declaration of independence of 17 February 2008.

I share many of the points made in the posts by Dapo and Zoran in their posts on this blog, notably their surprise at the Court’s strained conclusion on the identity of the authors of the declaration of independence – a readjustment of the request that is rightly criticised by Vice-President Tomka in his declaration. Instead of reiterating my agreement with other criticisms, I will use this comment to make two broader points on the scope of the opinion. The first comes back to the “minimalist” focus of the opinion, and essentially is an attempt to shift some of the blame away from the Court. The second is a reflection on what seems to be the crucial substantive statement of the opinion – namely that general international law does not prohibit declarations of independence.

A narrow answer to a narrow question

First, the Court’s minimalism. Few fail to mention it, some even speak of a “non-opinion”. I agree: the Kosovo opinion is narrowly argued, and its advisory value limited. But unlike some others, I do not think the Court can really be blamed for that. Of course, some of the judges may have been relieved to offer a narrow/cautious/minimalist reasoning, yet this is not unusual: when faced with high profile disputes courts often decide to be technical, and the ICJ is no exception. The real point is another one, and while obvious, I do not think it is properly reflected in the discussion so far. It is this: (more…)

Our readers might wish to know that the the ICJ’s recent Order on the inadmissibility of Italy’s counter-claims in the Jurisdictional Immunities of the State case, that was buried under the deluge that was the Kosovo AO,  is available from today on the ICJ’s website, together with three separate opinions. The Order essentially deals with the temporal admissibility of claims under Article 1 of the European Convention for the Peaceful Settlement of Disputes, and is in a way a sequel to the Certain Property (Liechtenstein v. Germany) case rejected by the Court a few years ago.

Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa. Hs previous EJIL:Talk! post on Self-Determination and the Status of Kosovo can be found here.

As we digest the meaning and implications of the recent Advisory Opinion, Separate and Dissenting Opinions, I’d like to offer two preliminary remarks: the first deals with the (lack of) mention of the right to self-determination of peoples, and secondly regarding the identity of the author of the Declaration of Independence of Kosovo.

In its decision, the Court declined to ‘apply’ straightforwardly the norm of self-determination to judge the UDI ‘illegal’ or ‘legal’. Had it chosen to follow the suggestions of Spain, Argentina, Serbia, China and others, Kosovo’s UDI would have been judged illegal because ‘external’ self-determination doesn’t apply outside of the contexts of decolonization and military occupation. Conversely, if following Albania, Estonia, Poland, Germany, Ireland and others, Kosovo’s UDI would have been legal under the ‘remedial’ variant of self-determination.

The Court chose instead to follow the suggestions of the United States, Britain and several other countries, and not to engage in interpretation of the question of self-determination at all. In a situation where opinions on the applicability of self-determination sharply diverge, seeking the lowest common denominator, the lex specialis of UN Resolution 1244 to judge Kosovo’s UDI, could have appeared as a prudent strategy. Interestingly, the Court did not refer to the parallel prong of the US argument—“the unique combination of factors”—that sought to provide a moral component to the otherwise technical reasoning that anchored the legal argument in the interpretation of Res. 1244. (more…)

The International Court of Justice has held that the declaration of independence by Kosovo is not in violation of international law.  Despite what is likely to be said in the media, this opinion is rather narrow. The Court has not ruled that Kosovo is (or is not a State) nor has it ruled that it is lawful (or unlawful) for States to recognise the independence of Kosovo. All that the Court has said is that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence. I suppose this is of some relevance to other people aspiring for independence as it indicates that international law does not prevent a minority from trying to achieve independence - by means of a verbal declaration. I doubt that this is in any way controversial but just to have the ICJ say this gives a political boost to those aspiring for independence. So in this sense, the opinion is a victory for Kosovo.  As Marko stated in his excellent preview (which is still worth reading as it captures really well the issues before the Court and the options that it had before it), one of the key issues before the Court was the “question question”: what was the scope of the question before the Court? According to the Court:

“The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly.” (para. 51)

Furthermore in answering the narrow question as to whether or not the declaration was in accordance with internationa law, the Court took the view that all it had to do was decide whether or not the declaration was prohibited by international law. In its view, it was not called upon to decide whether Kosovo had a right or entitlement to declare independence. This mean that issues to do with self-determination and whether there was a right of minorities to “remedial seccession” were not addressed by the Court . (more…)

Editor’s Note: This is a featured post. Newer posts, including those in our online symposium on The Constitutionalization of International Law, appear below

The ICJ has now officially announced that it will deliver its advisory opinion in the Kosovo case on 22 July. This essay/post is intended to serve as a preview of the many issues raised in the case, of the main lines of argument by states before the Court, and of the several possible avenues that the Court might take in deciding the case. (more…)

The  Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. (more…)

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

(more…)