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Home Archive for category "Jurisdiction"

The ICJ’s Preliminary Objections Judgment in Somalia v. Kenya: Causing Ripples in Law of the Sea Dispute Settlement?

Published on February 22, 2017        Author: 

On 2 February 2017, the International Court of Justice handed down its Judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). Somalia had brought the case to request that the Court determine its single maritime boundary with neighbouring Kenya. The ICJ held that it may proceed to the merits phase, thereby rejecting the respondent’s submissions. Among other arguments, Kenya raised an objection rooted in Part XV (“Settlement of disputes”) of the 1982 United Nations Convention on the Law of the Sea (LOSC). It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration made pursuant to Art. 36(2) of the ICJ Statute, which excludes “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”.

The fact that Kenya relied on this argument is noteworthy in and of itself, as it was the first time that the Court faced a LOSC-based jurisdictional challenge. Moreover, we believe that the way in which the Court disposed of this argument has far-reaching implications since it casts a long shadow over dispute resolution in the law of the sea. But before delving into the ICJ’s reasoning and its ramifications, we will highlight some essentials of the LOSC dispute settlement system.   Read the rest of this entry…

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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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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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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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