I am sorry to report that Tom Bingham, the former senior law lord, has died Saturday, aged 76. He was on any account the leading judge of his generation – probably, in the words of Philippe Sands writing today in the Guardian, ‘the greatest English judge of the modern era.’ In particular, his contribution to the implementation of human rights and of international law generally in English courts has been immense. He was President and Chairman of the British Institute of International and Comparative Law, and indeed BIICL had recently opened the new Bingham Centre for the Rule of Law. A sad day for our profession.

Our readers, especially those living in The Netherlands, might be interested in attending the forthcoming DOMAC conference in Amsterdam, to be held on 30 September and 1 October. DOMAC is an EU-funded joint project of Reykjavik University, University of Amsterdam, Hebrew University and University College London, and focuses on the actual interaction between national and international courts involved in prosecuting individuals in mass atrocity situations. Readers can find more about it here. The theme of the conference itself is the impact of international criminal procedures on domestic criminal procedures in mass atrocity cases, and the program is available here.

Our readers might be interested in a case note that I have just posted on SSRN on the Sejdic and Finci v. Bosnia and Herzegovina case before the European Court of Human Rights, which I blogged about before. It is forthcoming in the next issue of the American Journal of International Law, and here’s a very brief abstract:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society – discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court’s judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

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…)