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The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

Published on February 8, 2017        Author: 

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas. Read the rest of this entry…

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Turkish Military Intervention in Mosul: A Legal and Political Perspective

Published on January 27, 2017        Author: 

In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.

First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law  and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK. Read the rest of this entry…

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Ukraine Takes Russia to the International Court of Justice: Will It Work?

Published on January 26, 2017        Author: 

In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Read the rest of this entry…

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How the Awareness Criterion for Establishment of Dispute is Antithetical to Judicial Economy

Published on November 10, 2016        Author: 

The International Court of Justice recently in the case concerning the Negotiations relating to Cessation of the Nuclear Arms Race and Nuclear Disarmament ruled that it lacked the necessary jurisdiction, due to the absence of a ‘legal dispute’ between the parties. The Republic of Marshall Islands had sued the nuclear world powers (the application was admitted only against the UK, India and Pakistan) for non-compliance with the treaty obligation and customary law obligation to pursue in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament and cessation of the nuclear arm race at an early date. It is the first time in the history of the ICJ that it has refused jurisdiction on the grounds of the absence of a dispute, underlining a further move towards increasing formalism and positivism of the international court.

The court has defined legal dispute as “a disagreement on the point of law or fact, a conflict of legal views or of interests” between the contending parties. The Republic of Marshall Islands rooted the existence of a dispute between the parties in the “positive opposition” by the Respondent States in the present proceedings, and their engagement in a conduct of “quantities build-up” and “qualitative improvement” of their nuclear arsenal.

However, to the dismay of much of the international community, the majority in this case adduced an additional subjective limb of the ‘awareness’ of the Respondent regarding the claims of the Applicant, holding it quintessential to establish a legal dispute between the parties. Paragraph 38 of the judgment states:

“a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant”.

The introduction of the ‘awareness’ criterion for the establishment of a dispute not only goes against the jurisprudential constante of the Court to adjudicate the existence of a dispute on an objective basis, but also severely undermines judicial economy and sound administration of justice. The formalistic requirement of ‘awareness’ can be met by merely instituting a fresh application on the same grounds against the Respondent, who would then be aware of the dispute and contention of the Applicant as a result of the previous dismissed suit. Read the rest of this entry…

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The Doctrine of Indispensable Issues: Mauritius v. United Kingdom, Philippines v. China, Ukraine v. Russia, and Beyond

Published on October 14, 2016        Author: 

On 14 September 2016, Ukraine instituted proceedings against Russia under the United Nations Convention on the Law of the Sea (UNCLOS). Ukraine is requesting that an UNCLOS tribunal declare, inter alia, that Russia has violated the Convention by interfering with Ukraine’s rights in maritime zones adjacent to Crimea.

At first, there appears to be no jurisdictional problem. Aside from the exceptions laid out in Part XV of UNCLOS, the tribunal has jurisdiction over “any dispute concerning the interpretation or application of [the] Convention” (Art. 288(1) UNCLOS), which would permit a declaration that Russia has violated the Convention. Nevertheless, such a declaration would necessarily require a preliminary determination that Ukraine still has sovereignty over Crimea (under the “land dominates the sea” principle), and the tribunal does not have jurisdiction over territorial sovereignty disputes. Therefore, the tribunal must decide whether it may still exercise jurisdiction over the dispute concerning Russia’s violation of the Convention.

Ukraine v. Russia presents what one may call the “implicated issue problem.” Generally speaking, the implicated issue problem arises when an international court or tribunal has jurisdiction over a dispute, but the exercise of such jurisdiction would implicate an issue over which the court or tribunal does not have jurisdiction ratione materiae. The court or tribunal must therefore determine whether it may still exercise jurisdiction over the dispute. Read the rest of this entry…

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Capitulation in The Hague: The Marshall Islands Cases

Published on October 10, 2016        Author: 

When questions around nuclear weapons are brought before the ICJ, we don’t expect easy answers – too far apart are the realities of power politics from any defensible conception of what the world ought to look like, and international law is caught in the middle. In the 1996 Advisory Opinion on the legality of the use of nuclear weapons, the Court gave this fundamental tension an expression, even if it came up with answers (or non-answers) that left many dissatisfied. In this week’s judgment in the cases brought by the Marshall Islands – on the obligation to pursue nuclear disarmament – it does not take up the challenge at all. It instead evades the problem, and hides its evasion behind a façade of formalist legal reasoning.

As Christian Tams has already sketched in his first reaction to the judgment on this blog, the cases were dismissed on the grounds that no ‘dispute’ existed between the Marshall Islands and the UK, India and Pakistan. This is novel not only because never before has an entire case been dismissed on these grounds by the ICJ, but also because it stretches the interpretation of a ‘dispute’ beyond previous understandings: a dispute now requires some form of ‘objective awareness’ of the respondent state prior to the filing of the case. It is true that the requirement of an existing dispute has gained greater relevance in recent years, has played a consequential role in a number of cases, and has taken on a somewhat wider meaning than in earlier jurisprudence. Read the rest of this entry…

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No Dispute About Nuclear Weapons?

Published on October 6, 2016        Author: 

On 5 October 2016, the ICJ rendered judgment in three cases brought by the Marshall Islands against nuclear weapons States (namely against India, Pakistan and the UK).

Notwithstanding differences in the respondents’ optional clause declarations, the three judgments are largely identical. In all three of them, the Court decided that it did not have jurisdiction and thus could not proceed to the merits of the claims. As a consequence, the Court will not assess the substance of the Marshall Islands ‘nuclear zero’ cases – launched with significant NGO support in 2014 and meant to put pressure on nuclear weapons States to take seriously their duty to negotiate towards disarmament under Article VI of the NPT.

In this first reaction, I do not mean to comment on the outcome, but rather offer a few thoughts on the reasoning of yesterday’s judgments. This reasoning is technical, but – at least for international lawyers working in the field of dispute settlement – quite significant. To be sure, jurisdictional ‘defeats’ are quite common in optional clause proceedings before the ICJ. However, yesterday’s judgments stand out for two reasons: first, they were carried by very narrow majorities; and second, the narrow majorities were based on an unusual ground, a ‘first’ in fact: they held that there was no ‘dispute’ between the Marshall Islands and the respective respondents.  A brief word on each of these two points: Read the rest of this entry…

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Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related Money Laundering by Foreign Officials?

Published on July 29, 2016        Author: 

On 14 June 2016, the International Court of Justice (ICJ) announced that Equatorial Guinea had instituted proceedings against France before the Court. Equatorial Guinea’s claims arise from the French prosecution of Teodoro Nguema Obiang Mangue, First Vice-President of Equatorial Guinea, on charges of corruption-related money laundering. This is the first time that allegations related to large-scale corruption – often dubbed as ‘kleptocracy’ or ‘grand corruption’ – engender a dispute before the ICJ. This post offers an overview of some of the legal issues that the Court may address in the course of this litigation.

Background

Mr Obiang is First Vice-President of Equatorial Guinea and the son of the country’s president, Teodoro Obiang Nguema Mbasogo (who is, incidentally, the world’s longest-serving president, in power since 1979). At the time when the proceedings were brought, Mr Obiang was Second Vice-President in charge of defence and security, having been promoted to his current post on 22 June 2016.

The two statesmen are no strangers to controversy. Allegations of corruption have been levelled against them repeatedly (see, e.g., here and here). In 2014, Mr Obiang surrendered part of his US-based property in settlement of US v One White Crystal-Covered ‘Bad Tour’ Glove et al, an asset forfeiture case brought by the US Department of Justice that involved his collection of Michael Jackson memorabilia and real estate. A criminal investigation is reportedly underway in Spain and corruption-related human rights litigation against Equatorial Guinea is pending in the African Commission on Human and Peoples’ Rights.

The French investigation against Mr Obiang arises from a criminal complaint submitted by Transparency International France and Sherpa, two anti-corruption NGOs. Their allegation is that he has pilfered the coffers of Equatorial Guinea and invested the proceeds in France. The French authorities launched an enquiry after the Cour de Cassation’s 2010 judgment that confirmed the standing of NGOs to bring criminal complaints. On 13 July 2012, France issued an international arrest warrant against Mr Obiang. As of now, the pre-trial investigation has been concluded and the investigating magistrate shall decide whether to refer the case to court. Mr Obiang’s attempt to invoke immunity in France fell through as the Cour de Cassation ruled that (1) immunity under customary international law is limited to heads of states, heads of governments, and foreign ministers, and (2) at the time of the alleged commission of the imputed offences, Mr Obiang was merely a minister of agriculture and forests.

In another twist of events, in 2011 – that is, after the Cour de Cassation’s 2010 ruling that paved way for his prosecution – Mr Obiang sold his Parisian mansion to the state of Equatorial Guinea. Equatorial Guinea asserts that the property has henceforth formed part of the premises of its embassy to France. Unimpressed by the manoeuvre, the French investigating magistrate ordered the seizure of the building in 2012.

In Equatorial Guinea’s contention, (1) the French criminal proceedings constitute an unlawful interference with its internal affairs because alleged wrongdoing would fall within the exclusive jurisdiction of Equatorial Guinea, (2) Mr Obiang is entitled to immunity from the French criminal jurisdiction, and (3) the seizure of the building is in breach of the Vienna Convention on Diplomatic Relations 1961. Read the rest of this entry…

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Environmental Aspects of the South China Sea Award

Published on July 21, 2016        Author: 

Earlier posts (here and here) have provided a general overview of the much-anticipated 12 July Award of an UNCLOS Annex VII Tribunal in the Philippines v China case. This post will focus on the environmental aspects of the Award. The Tribunal’s consideration of environmental issues is largely contained in the part of the Award dealing with the Philippines’ submissions 11 and 12(B) ([815]-[993]). While these submissions were phrased differently, they both sought declarations that China had violated its obligations under UNCLOS to protect and preserve the marine environment (submission 11 related to various locations whereas submission 12 related to Mischief Reef). The Philippines’ environmental claims related to two aspects of China’s conduct: firstly China’s alleged toleration or support of environmentally harmful fishing practices by its nationals; secondly, the environmental impact of China’s land reclamation and construction activities.

Treaty Interpretation and Due Diligence

The Tribunal’s interpretation of the general obligation under UNCLOS Article 192 to ‘protect and preserve the marine environment’, and the more specific obligations under Article 194 regarding marine pollution, embedded these provisions within wider environmental law. The Tribunal noted that these obligations require states to exercise due diligence and to ensure that activities occurring within their jurisdiction and control do not harm the marine environment, referring to ITLOS’ 2015 Advisory Opinion regarding a state’s obligation to investigate reports by another state of non-compliance by its vessels with provisions of the Convention concerning protection of the marine environment, and the ICJ’s remark in Pulp Mills on ‘due diligence’ requiring a ‘certain level of vigilance’: [944].

In interpreting Article 194(5) of UNCLOS, which requires states to ‘protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species’, the Tribunal drew on several aspects of wider international environmental law. This included having regard to the definition of an ‘ecosystem’ in Article 2 of the Convention on Biological Diversity, the term not being defined in UNCLOS. Based on the scientific evidence before it, the Tribunal had no doubt that the marine environments in question were ‘rare or fragile ecosystems’ and the habitats of ‘depleted, threatened, or endangered species’: [945].
The Tribunal also had regard to CITES, to which both the Philippines and China are parties, in informing the content of UNCLOS Articles 192 and 194(5). The context here was that the sea turtles found on board Chinese fishing vessels were listed under Appendix I of CITES as a species threated with extinction, and the giant clams which had been harvested by Chinese nationals, as well as corals in the area, were listed in Appendix II of CITES: [956]-[957]. The evidence indicated that Chinese-flagged vessels had made widespread use of a particularly damaging technique of breaking up coral with their propellers to extract clams: see [847]-[851], [958]. Read the rest of this entry…

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Three New ICJ Cases Filed, Including Iran v. United States

Published on June 16, 2016        Author: 

In some ten days the International Court of Justice got three new cases on its docket. First, on 6 June Chile instituted proceedings against Bolivia with regard to a dispute concerning the status and use of the waters of the “Silala River system.” The jurisdictional basis of the case is the compromissory clause in the Pact of Bogota, and the cases raises issues of international watercourses and environmental law.

Second, on 14 June Equatorial Guinea instituted proceedings against France with regard to the immunity from criminal jurisdiction of its Second Vice-President in charge of State Defence and Security, and the legal status of the building which houses its Embassy in France. The Guinean Vice-President is under investigation for corruption offences by French authorities, on the basis that he invested the proceeds of that corruption in France. French prosecutorial and judicial authorities have held that he has no claim to immunity. The building in question was first bought by the Vice-President and then sold by him to the Guinean Embassy; French authorities assert that it is not protected by immunity since it was bought out of the proceeds of the offences for the which the Vice-President in being prosecuted for, and is not part of the diplomatic mission. The jurisdictional basis for the case is the compromissory clauses in the protocol to the Vienna Convention on Diplomatic Relations and the UN Convention against Transnational Organized Crime.

Finally, yesterday Iran instituted proceedings against the United States in a dispute concerning alleged violations of the 1955 Treaty of Amity, and on the basis of the compromissory clause in that Treaty. The case essentially concerns the alleged US failure to respect the immunity of the Iranian Central Bank/Bank Markazi and other Iranian entities, as well as other rights conferred by the Treaty (the Court will not have jurisdiction for violations of customary international law directly, but only insofar as these rules are referred to or assist in the interpretation of the provisions of the Treaty). Enforcement proceedings have been brought in the US against these Iranian entities for Iran’s involvement in terrorist activities; see more on the whole affair the previous post by Victor Grandaubert.

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