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Home Archive for category "Jurisdiction"

The Same Thing? Negotiation and Articles 11-13 of the CERD Convention in Ukraine v Russian Federation

Published on November 28, 2019        Author: 

On 8 November 2019, the ICJ issued its preliminary objections judgment in Ukraine v. Russian Federation – see here for an excellent discussion of its importance. This piece focuses on one aspect of the decision, that the “preconditions” of Article 22 of the CERD Convention are alternative rather than cumulative. It looks specifically at the reasoning in the decision, and the understanding that it relies on of the Articles 11-13 inter-state communications procedure before the CERD Committee. It may be recalled that Articles 11-13 applies to all States Parties to the CERD Convention and has an importance beyond the jurisdiction of the Court. In the judgment the right outcome (dispositif) may have been reached, but the reasoning (motif) may be problematic in relation to the Court’s narrow understanding of Articles 11-13 as negotiation.

Article 22 and its alternative/cumulative preconditions

Article 22 of the CERD Convention reads:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

Three principal arguments on the alternative/cumulative question will be highlighted, as they relate to the eventual decision.

First, Read the rest of this entry…

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The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

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CERD Reaches Historic Decisions in Inter-State Communications

Published on September 6, 2019        Author: 

On 29 August 2019, the Committee on the Elimination of Racial Discrimination (CERD) concluded its 99th session, in which it reached a historic decision on jurisdiction and admissibility in two of the three inter-State communications submitted under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination, Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates. The Committee decided that it has jurisdiction in the two communications and has also declared them admissible. The Committee’s Chairperson will now appoint an ad hoc Conciliation Commission in the two communications in compliance with Article 12 of the Convention, whose good offices will be made available to the States concerned with a view to an amicable solution of the matter. In the third inter-State communication, Palestine v Israel, the Committee decided to postpone its consideration of the issue of jurisdiction to its 100th session, to be held in November-December 2019.

The Chair of the Committee stressed that ‘the decisions on the inter-State communications were the first such decisions that any human rights treaty body had ever adopted’. The tone is markedly different from that adopted at the conclusion of its previous 98th session on 10 May 2019:

The Committee had examined three interstate communications submitted under Article 11 of the Convention: one by Qatar against Saudi Arabia; one by Qatar against the United Arab Emirates; and another by the State of Palestine against Israel.  While it had held hearings on these communications, the Committee had decided not to take any decisions, due to the legal complexity of the issues broached and a lack of resources.

This somewhat striking statement was quoted in proceedings before the International Court of Justice on 7 June 2019 by the representative for Ukraine: Read the rest of this entry…

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Comments on Coastal and Flag State Jurisdiction in the M/T “San Padre Pio” Dispute

Published on September 3, 2019        Author: 

The M/T “San Padre Pio” dispute between Switzerland and Nigeria arose following the interception and arrest by the Nigerian navy of the M/T “San Padre Pio” – a Swiss flagged tanker – while this was engaged in one of several Ship-to-Ship (STS) transfers of gasoil in the vicinity of the Odudu Oil Field within Nigeria’s Exclusive Economic Zone (EEZ).  Although the facts are not entirely clear at this stage, it appears that the M/T “San Padre Pio” transferred gasoil not directly to the Odudu Terminal (for which the gasoil was ultimately intended) but to other transport vessels by way of STS transfers.  These other transport vessels then transported the fuel a short distance to the Odudu Oil Field where they made direct transfers to installations located therein.  Switzerland contends that the “San Padre Pio” was supplying gasoil to Anosyke, the Nigerian company with which it had a supply contract.  The Odudu Oil Field is operated by Total.

Following a request for provisional measures submitted by Switzerland to the International Tribunal for the Law of the Sea (ITLOS) under Article 290(5) of the Law of the Sea Convention (LOSC), on 6 July 2019 ITLOS ordered Nigeria to release the M/T “San Padre Pio”, its cargo, Master and three officers (Order, para 146).  This provisional measures order was insightfully examined by Yurika Ishii here.  The purpose of this post is to examine Swiss and Nigerian arguments about coastal and flag State jurisdiction in anticipation of the Annex VII arbitral tribunal’s decision on the substance of the dispute.  The forthcoming analysis will be undertaken in view of the facts as presently known and in light of the most relevant Law of the Sea Convention (LOSC) provisions. 

In his Separate Opinion, Judge ad hoc Murphy considers that it is “difficult to assess whether the situation [in the “San Padre Pio” dispute] is best approached as simply a STS transfer, which normally is understood as a transfer of cargo between two seagoing vessels, or is best approached as offshore bunkering, which normally is understood as the replenishment by one vessel of a second vessel’s fuel bunkers with fuel intended for the operation of the second vessel’s engines”.  Since the M/T “San Padre Pio” never provided gasoil directly to the oil field installations or to vessels for use as bunker fuel in their own propulsion, this post will consider the type of activities which the M/T “San Padre Pio” was engaged in as STS transfers, not as bunkering operations. Read the rest of this entry…

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Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 

The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…

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Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 

With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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Deep Seabed Mining in the Area: is international investment law relevant?

Published on July 10, 2019        Author: 

The last decade has seen a renewed interest in the commercial exploitation of deep seabed minerals located beyond national jurisdiction. However, the respective responsibilities of deep sea miners and of their sponsoring states in this process have not been clarified fully. This short piece argues that international investment law is part of the legal framework applicable to the relationship between the deep sea miner and the state sponsoring it. More specifically, it attempts to demonstrate that deep sea mining operations can constitute a foreign-owned investment within the territory of a host state. Thus, when accepting to sponsor deep sea mining activities, states need to be mindful of the additional disciplines imposed by international investment law. 

The seabed beyond national jurisdiction (named as the “Area” by UNCLOS) is known to contain valuable mineral resources including copper, nickel, zinc and rare earth metals which have become particularly valuable because of recent technological innovations. The International Seabed Authority has awarded twenty-nine exploration contracts to a variety of state and private corporate bodies for vast zones in the Pacific and Indian Oceans. Foreign capital has become increasingly involved in this economic activity. Thus, Nauru Ocean Resources, a Nauruan entity which was granted an exploration contract in 2011, is a subsidiary of the Australian corporation Deepgreen Mineral Corp. UK Seabed Mineral Resources is a subsidiary of the well-known Lockheed Martin. However these activities are controversial and there exist glaring gaps in the scientific knowledge of the ecosystems where deep sea mining is supposed to take place. Read the rest of this entry…

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Callamard Report on the Murder of Jamal Khashoggi: Part II

Published on June 26, 2019        Author: 

In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).

In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.

Read the rest of this entry…

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The Distinction between Military and Law Enforcement Activities: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine V. Russian Federation), Provisional Measures Order

Published on May 31, 2019        Author: 

International Tribunal for Law of the Sea (ITLOS) issued a provisional measures order to Russian Federation to release three Ukrainian naval vessels and their servicemen on 25 May 2019. In deciding that the Annex VII arbitral tribunal would have prima facie jurisdiction as required under Article 290(5) of United Nations Convention on Law of the Sea (UNCLOS), the Tribunal held that the case was not “disputes concerning military activities” as provided under Article 298(1)(b) (see Kraska).

This is an important decision considering that there is no settled definition of “military activities” which allows state parties to be exempted from the compulsory dispute settlement procedure under UNCLOS. This is the first time that ITLOS held its interpretation on the former half of Article 298(1)(b) (while the latter half was dealt in the provisional measures order in Arctic Sunrise, para.45), and South China Sea arbitration case of 2016 before Annex VII Arbitral Tribunal remains the only precedent where a third-party dispute settlement institution held its interpretation of the same text.

There seems to be a common understanding that in this order, the Tribunal interpreted the scope of the “military activities” under Article 298(1)(b) quite narrowly, if not diminished, and thereby lowered its jurisdictional bar. While assessments of this decision have already been posted (see Kraska, Schatz), this post adds some comments on the legal framework that the Tribunal relied upon.

Preliminary Remarks

One thing that should be kept in mind is that, since it is a provisional measures order, it suffices if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, and need not definitively satisfy itself that the tribunal has jurisdiction over the dispute (Order, para. 36; see also ARA Libertad, para. 60). Judge Lijnzaad’s commented that the questions of the applicable law and of whether the issues raised are solely to be understood as being related to the interpretation and application of UNCLOS were left to Annex VII arbitral tribunal at a later stage, as they are “matters that go well beyond the prima facie analysis of a request for provisional measures (Declaration, Lijnzaad, para.8).” Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 

Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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