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Home Archive for category "Jurisdiction"

Quasi-Judicial Dialogue for the Coherent Development of International Law

Multilateral Development Banks have established international accountability mechanisms over the last 25 years in order to offer private individuals or groups a process through which they can demand the redress of grievances caused by the banks’ projects. Accountability mechanisms are often composed of experts appointed by each bank’s Board of Directors. The mechanisms generally have a compliance review function, with or without a problem-solving function. With their different mandates, these quasi-judicial bodies have, just like judicial bodies, proliferated in a process that can be deemed “quasi-anarchic“. This post explores a recent project in Kenya presented simultaneously before two accountability mechanisms, and argues that accountability mechanisms’ “quasi-judicial dialogue” can constitute a source of inspiration for the coherent development of international law.

Two Accountability Mechanisms, Two Mandates

As judicial and quasi-judicial bodies participate in the development of international law, there is a risk of incoherence in their decisions with consequences such as unpredictability, inequalities or forum-shopping, which would endanger the international legal system (see Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?). Incoherence may become even more acute for Multilateral Development Banks’ accountability mechanisms as they confront very similar factual scenarios, especially in the case of co-financing where parties affected by an investment may seize more than one accountability mechanism, just like in the Kenya Electricity Expansion Project presented before the World Bank and the European Investment Bank’s accountability mechanisms.

Indeed, there are four important differences between the mandates of the World Bank Inspection Panel (hereinafter the Panel) and the European Investment Bank’s Complaints Mechanism. In all four aspects, the World Bank’s policy is more restrictive than the European Investment Bank’s (hereinafter EIB). 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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Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany

Published on August 12, 2016        Author: 

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

Impunity Prevailing on International Level

Many of the grave human rights violations in Syria are well documented by international bodies, international NGOs such as Amnesty International and Human Rights Watch (which rely on evidence from Syrian activists who are documenting these kind of crimes under great personal risk), and national organizations such as the Syrian Network for Human Rights, the Syrian Observatory for Human Rights and the Violations Documentations Centre.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security; Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction. Read the rest of this entry…

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Philippines v China: first thoughts on the Award in the South China Seas Case

Published on July 12, 2016        Author: 

Any international lawyer looking at a news site in the last few hours will have seen that the final award has been handed down at the Permanent Court of Arbitration in the Philippines v China dispute brought under the UN Convention on the Law Sea Annex VII procedure. The arbitral tribunal’s decision is simply historic. While Philippines has lost on a number of smaller points, the scale of its win overall is much greater than most commentators were expecting.

What follows is a very preliminary comment – and I stress that faced with a 500 page decision I may well revise my views later. It is also more in the nature of an explainer than a deep dive on any of the many legal questions already highlighted below. (This is also an excessively long post, for which I apologise.) However, on a first, quite brief, examination the tribunal has attempted to be meticulously fair to China and has applied the UN Convention on the Law of the Sea strictly and thoroughly. It has delivered a result which was, by and large, predictable.

James Kraska of the US Naval College has summarised the key holdings as:

  • the nine dash line has no basis in law,
  • there are no islands in the disputed area within the meaning of Article 123, UNCLOS,
  • China has interfered in the Philippines’ EEZ; and
  • China’s actions have aggravated the dispute.

I would add to this list three matters. First, the Tribunal has concluded that Mischief Reef is a low tide elevation over which no State can claim sovereignty or possession. This means it is simply a maritime feature within the Philippines exclusive economic zone (EEZ). Chinese island-building activities there are thus not merely without legal effect but are in violation of the sovereign rights of the Philippines.

Second, it has found that China has breached various obligations under UNCLOS regarding the protection and preservation of the marine environment by having caused severe and irreparable harm to coral reef ecosystems in its construction of artificial islands in the South China Seas.

Third, international tribunals normally bend over backwards to avoid findings of bad faith against a state. That is, one cannot act in bad faith without violating some other substantive right. So most tribunals consider it sufficient to stop at determining that a right or duty has been violated. This tribunal has found China violated Article 300 of UNCLOS: the duty to act in good faith. This is an extraordinary rebuke and a clear indication that the law of the sea dispute resolution system will not be cowed by the posturing of the superpower. As a matter of principle, it takes a principled stand on the supremacy of the rule of law. As a matter of pragmatism, it flies in the face of the conventional wisdom that angering China over this dispute could jeopardise the stability of the law of the sea system.
Read the rest of this entry…

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ECHR Jurisdiction and Mass Surveillance: Scrutinising the UK Investigatory Power Tribunal’s Recent Ruling

Published on June 9, 2016        Author: 

Last week, as discussed in a post by Marko Milanovic, the UK Investigatory Powers Tribunal (IPT) ruled that it lacked jurisdiction under the European Convention of Human Rights (ECHR) to adjudicate Article 8 and 10 claims brought by persons “situated outside” of the UK (para. 60). The IPT is a specialised judicial body that hears complaints about surveillance by public bodies, including British security and intelligence agencies. IPT decisions are not subject to direct appeal in the UK. We are therefore likely to see this ruling quickly challenged before the European Court of Human Rights (ECtHR).

Background

The backdrop to this litigation is convoluted. I sketch out the context in this post as I believe it will enrich discussion of the jurisdictional issues which are at the heart of this dispute. In 2013, following the Snowden disclosures, Privacy International, together with nine other NGOs, filed a case before the IPT challenging two aspects of the UK’s surveillance regime. First, the claimants challenged UK access to the communications of persons located within the UK collected by the US National Security Agency (NSA) under PRISM and Upstream. Under PRISM, the NSA collected data from US companies including Yahoo and Google. Under Upstream, the NSA intercepted data in bulk from hundreds of undersea fibre optic cables. Second, the claimants challenged Tempora, the British counterpart to Upstream, under which the Government Communications Headquarters (GCHQ) intercepted data in bulk from over 200 cables landing in the UK.

In February 2015, the IPT found that US-UK intelligence sharing – pursuant to PRISM and Upstream – was unlawful prior to 5 December 2014 because the legal framework governing it was hidden from the public (according to the IPT, that framework was sufficiently disclosed over the course of the proceedings so as to render the sharing of intelligence legal from that point forward). Read the rest of this entry…

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Universal Jurisdiction or Regional Lawfare

Published on June 1, 2016        Author: 

This article reflects on Relja Radović’s article “A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague.

The major point of contention

As a major point of contention between Croatia and Serbia in the current “jurisdictional debate”, Radović rightly pinpoints Article 3 of the Law on the Organization and Competence of State Authorities in War Crime Proceedings (the “LWC”) (see here) by which Serbia extended its criminal jurisdiction in proceedings for the most serious violations of IHL committed on the territory of the former SFRY (LWC Article 2), regardless of the citizenship of the perpetrator or victim (LWC Article 3). Radović also summarizes Croatia’s objections to LWC Article 3 and the jurisdiction it introduced, which argue that it is incompatible with international law (including international criminal law) and “European standards”, as well as contrary to the very notion and basic principles of universal jurisdiction. For the sake of clarity, it should be noted that LWC Article 2, which introduces the aforementioned territorial extension of the Serbian criminal jurisdiction, and Article 3, which reasserts this extension and simultaneously cuts any links to the citizenship of the perpetrator or victim, must be read in conjunction. However, for the purposes of this article, reference will be made to Article 3 to cover both, as was Radović’s approach.

In his analysis of the dispute, Radović fully and unreservedly accepts the official Serbian narrative, which equates LWC Article 3 to universal jurisdiction as it is commonly understood or – as Radović later in his contribution dubs it – to “real” universal jurisdiction. Namely, according to Radović:

“the contested Article 3 does not, in itself, create Serbian criminal jurisdiction over crimes committed during the Yugoslav conflict based on the universality principle” … but “… this jurisdiction exists independently of the contested Law … and is provided by the virtue of … Article 9 para 2 in conjunction with Article 10 para 3 of the Serbian Criminal Code … regulating “real” universal jurisdiction for international crimes”.

The author therefore concludes that there is no difference between the two (LWC Article 3 and “real” universal jurisdiction), that “it seems that Croatia has totally misinterpreted the whole issue”, and that by opposing LWC Article 3 Croatia is blindly and unreasonably opposing a form of jurisdiction (“real” universal jurisdiction) accepted in criminal legislation in many EU Member States, as well as other States, including Croatia’s own criminal legislation. Read the rest of this entry…

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A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague”

Published on April 22, 2016        Author: 

As recently reported, Croatia has blocked the opening of Chapters 23 and 24 of the accession negotiations between Serbia and the European Union (EU). One of the reasons given relates to Serbia’s law establishing the jurisdiction of Serbian prosecutors and courts over war crimes committed anywhere on the territory of the former Yugoslavia. Justifying their actions, Croatian officials have said that Serbia must follow “European standards”, with some Croatian officials and media reports referring to Serbia’s extension of jurisdiction as the creation of a “mini-Hague” (a media report in Serbo-Croatian is available here). Croatia has asserted that such jurisdiction is incompatible with international law and that it actually constitutes a “hybrid”, rather than universal, jurisdiction (available here in Serbo-Croatian). From the perspective of States whose national legislation provides for universal jurisdiction over international crimes, the issues arising here are quite interesting.

The involvement of the European Commission and its request that the Croatian government cease its opposition has added further complexity to the matter. In a ‘non-paper’, the European Commission has expressed its opinion that the arguments advanced by Croatia are not justified. Commenting on the document, a Croatian official has described it as an old document meant for internal use, and one that the Croatian public should not be bothered with.

Jurisdiction over Croatian Nationals

Croatia’s criticism seems to be aimed at the statutory provisions themselves. In particular, Croatia takes issue with Article 3 of the Serbian Law on Organization and Jurisdiction of State Organs in War Crimes Proceedings, which provides:

The government authorities of the Republic of Serbia set out under this Law shall have jurisdiction in proceedings for criminal offences specified in Article 2 hereof, committed on the territory of the former Socialist Federative Republic of Yugoslavia, regardless of the citizenship of the perpetrator or victim. (An older English version of the law is available here; the quoted provision remains unchanged.)

Croatia thus appears concerned with the possibility of Serbia exercising its jurisdiction over Croatian nationals. No accusations of discriminatory or systematic prosecutions by Serbian prosecutors against Croatian nationals have been advanced by Croatia.  To date, universal jurisdiction has not been extensively used to prosecute foreign nationals for war crimes allegedly perpetrated in the Yugoslav conflict; reported cases include both an acquittal and a rejection of a request for extradition (for the reason of an allegedly politically motivated process) of two Bosnians. In 2015, a Croatian national sentenced in Serbia for war crimes was transferred to serve his sentence in Croatia.

Compliance with “European Standards” and International Law

The Croatian government is targeting a particular statutory provision, which in its opinion, marks Serbia’s intention to act as a “regional policeman”. Read the rest of this entry…

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Palestine at the Gates of the Peace Palace: The long and windy road towards Palestinian membership in the Permanent Court of Arbitration

Published on April 5, 2016        Author: 

To Be or not to be a Party …

It took two lengthy sessions of the Administrative Council of the Permanent Court of Arbitration (‘PCA’ ) before it decided, on March 14, 2016, to confirm that the ‘State of Palestine’ is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) and hence also a member of the PCA. The decision was made by vote, for the first time in the long history of the PCA, with 54 states voting in favor and 25 abstentions. Notably, the parallel accession of Kosovo is still ‘under review’. This development raises a whole set of legal issues ranging from the role of the depositary in situations of contested statehood, to issues of treaty interpretation, as well as finally the legal consequences of Palestine now having become a member of the PCA.

In order to understand the legal implications of the decision, it is necessary to recall some of the most important steps that led to its adoption. Both Palestine and Kosovo, had within a short space of time (namely on 30 October 2015 (Palestine) and on 6 November 2015 (Kosovo)), submitted their accessions to the 1907 Convention. These accessions were acknowledged by the depositary, the Dutch government, on 17 November 2015 on its depositary website. The website also indicated that the said Convention would enter into force for Palestine on 29 December 2015 and for Kosovo on 5 January 2016, a move that was (somewhat prematurely, as we will see) welcomed by the Kosovo Ministry of Foreign Affairs. Upon the request of Serbia, the Administrative Council of the PCA then met on January 4, 2016, i.e. just one day before the Kosovar accession was supposed to become effective, and decided to keep the situations of Kosovo and Palestine ‘under review’, which in turn led the Depositary to ‘strike out’ the accessions of Palestine and Kosovo, with both of them then listed in the following manner:

“Parties (5 January 2016):

Party                            Ratification                  Entry into force

Kosovo                        06-11-2015 (T)           05-01-2016                

Palestine                       30-10-2015 (T)           29-12-2015 

This in turn then led to a request by a group of Arab States for yet another urgent meeting of the Administrative Council of the PCA. This meeting was supposed to deal with the status of Palestine vis-à-vis the 1907 Convention, given that by the time the above-mentioned decision of January 4, 2016 had been made to keep the situations of Kosovo and Palestine ‘under review’, Palestine had already become a contracting party of the Convention with effect from December 29, 2015. Hence, the action by the depositary had amounted, as far as Palestine was concerned, to a de facto suspension of a pre-existing treaty membership. Read the rest of this entry…

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