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Home Archive for category "Treaty Law"

Negotiating Justice at the ASP: From Crisis to Constructive Dialogue

Published on November 29, 2016        Author: 

During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.

How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.

Lost amid polarization

This year was decidedly different from previous years, when polarization grew increasingly tense. Read the rest of this entry…

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Africa and the ICC: Shattered Taboos, and the Status Quo

Published on November 23, 2016        Author: 

The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.

The Shifting Debate

The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.

Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.

This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters. Read the rest of this entry…

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Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC

Published on November 21, 2016        Author: 

On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.

It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:

dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.

As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Read the rest of this entry…

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On the Paris Agreement’s Imminent Entry Into Force (Part II of II)

Published on October 12, 2016        Author: 

This is Part II of a two-part post.

What are the Consequences of the Paris Agreement’s Entering into Force?

The Paris Agreement is to enter into force on 4 November 2016, 30 days after the second of its two thresholds was passed on 5 October 2016. On that day, the emissions covered by those Parties to the Convention that ratified or accepted the Agreement amounted to 56.75% of global total emissions; crossing the 55% bar required by the agreement. (see Part I)

So, what does this mean? I would like to highlight 10 points.

First of all, the Agreement becomes international law. It is an international treaty, i.e. an international agreement concluded between states in written form and will be governed by international law (Art. 2.1 (a) Vienna Convention on the Law of Treaties – VCLT).

While 197 Parties to the UNFCCC adopted the Paris Agreement and 191 signed it so far, it is important to note that it will only bind those 74 states and the EU (as of 7 October 2016) which have expressed their consent to be bound by it through ratification, acceptance or approval. Each of these states for which the Agreement is in force will then become a “Party” to the Agreement. This means that despite the commonly used adage, it is not a universal agreement. Rather, at the time of entry into force, it captures only about 2/5 of the Parties to the Convention, with others hopefully joining over time.

According to the principle of “pacta sunt servanda”, Parties are obliged to keep the treaty and must perform it in good faith (VCLT, Article 26). Good faith suggests that Parties need to take the necessary steps to comply with the object and purpose of the treaty. Neither can Parties invoke restrictions imposed by domestic law as reason for not complying with their treaty obligations. Read the rest of this entry…

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On the Paris Agreement’s Imminent Entry Into Force (Part I of II)

Published on October 11, 2016        Author: 

This is Part I of a two-part post.

Rapid Entry Into Force or the “Rush to Ratify”

The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU, Canada and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!

Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.

The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.

It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.

How was it possible? 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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Brexit: Is everything going to change in law, so that very little would change in fact?

Published on June 27, 2016        Author: 

‘A full calorie Brexit or Brexit lite?’, Marko Milanovic has asked on this blog. The different modalities of Brexit are rooted in Article 50 TEU, which foresees a period of two years to negotiate the precise terms of UK’s exit and a future relationship between the UK and the EU. Moreover, the referendum does not have any self-executing legal effects. It will now be on the UK government to decide when (and whether?) Article 50 should be triggered. We agree with Marko’s excellent analysis and believe that, in principle, a number of lite exit diets could be created. What is also possible is that we would get three parallel Brexits, some with more calories than others. England and Wales could leave on different terms than Northern Ireland (which may at least theoretically even stay via the Republic of Ireland); and it is possible that Scotland would continue the UK’s membership with some revisions – and as an independent state.

Brexit lite: replacing EU law with international treaty law

Article 50 does not exclude – perhaps it even encourages – the conversion of a full-fledged membership into a ‘Switzerland-plus-minus’ arrangement. Hence the phrasing in Article 50(2) TEU: ‘[T]aking account of the framework for its [of the exiting member state] future relationship with the Union.’ If it were envisaged from the outset that this relationship would be the same as the relationship between the Union and e.g. Panama, this phrasing would have been completely redundant. Yet, any Conservative PM would probably have difficulties accepting a single market deal with the present free movement of people package. It is difficult to imagine, on the other hand, that the EU could give the UK an asymmetric free movement deal, without people. But then, there is some room to manoeuvre. Read the rest of this entry…

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Protecting Public Welfare Regulation Through Joint Treaty Party Control: A ChAFTA Innovation

Published on June 21, 2016        Author: 

Anthea%20Roberts%20PhotoIf countries wish to protect legitimate and non-discriminatory public welfare regulation from investor-state claims, what options do they have? This post highlights an innovative feature in the recent China-Australia Free Trade Agreement (ChAFTA) that goes well beyond existing safeguards for protecting the regulatory autonomy of states by providing a mechanism for joint treaty party control. In doing so, ChAFTA evidences a new and controversial step in efforts to recalibrate interpretive authority between arbitral tribunals and the treaty parties acting collectively.

Richard BraddockNewer-style investment treaties often seek to protect countries’ regulatory autonomy by reaffirming the importance of public welfare regulation in the preamble; refining and clarifying core investment protections; and sometimes including general exceptions clauses. These approaches are useful but have limits. Preambular provisions are non-binding. Substantive clauses are binding, but states may not wish to allow arbitral tribunals to second-guess the permissibility of sensitive public welfare measures. Even if respondent states ultimately prevail, they are likely to expend considerable resources in time and money in defending claims.

Faced with these concerns, China and Australia broke new ground in ChAFTA by including a mechanism that protects public welfare measures through joint treaty party control. ChAFTA provides that, “Measures of a Party that are non-discriminatory and for the legitimate public welfare objectives of public health, safety, the environment, public morals or public order shall not be the subject of a claim” by an investor (Article 9.11.4). If an investor challenges a regulatory measure, the respondent state is permitted to issue a “public welfare notice” specifying why it believes that the measure falls within this exception. The arbitration proceedings are then suspended and a 90-day consultation period with the other treaty party is triggered (Article 9.11.5-9.11.6).

If the treaty parties agree that the challenged measure fits within the scope of the carve-out, the decision is binding on any investor-state tribunal and any decision or award issued by such a tribunal must be consistent with that decision (Article 9.18.3). Read the rest of this entry…

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Whose Security is it Anyway? Towards a Treaty Prohibition of Nuclear Weapons

Published on May 31, 2016        Author: 

On Friday, 13 May 2016, the UN’s Open Ended Working Group (OEWG), convened pursuant to UNGA resolution 70/33 (7 Dec 2015) and mandated, inter alia, to “substantively address concrete effective legal measures, legal provisions and norms that would need to be concluded to attain and maintain a world without nuclear weapons”, closed its second session with a majority of states calling for negotiations of a legally binding instrument (or instruments) to prohibit nuclear weapons to start in 2017.

Although (or perhaps because) the nuclear-armed states have chosen not to play ball, for the first time in decades, a treaty outlawing nuclear weapons is a real possibility. The OEWG, which will meet for a third time in August to agree on recommendations to the UNGA, and the ensuing tug-of-war in the UNGA’s First Committee in October, offer an historic opportunity for multilateral nuclear disarmament negotiations to take a big step forward. The reframing of nuclear disarmament as a humanitarian concern has been instrumental in generating strong momentum in support of negotiations. This post surveys some of the legal controversies that arose during the OEWG and explains why, from a humanitarian disarmament perspective, a treaty prohibition of nuclear weapons is both imperative and an effective disarmament measure, even without the participation of the nuclear-armed states.

Open to all, the OEWG’s May session has been attended by 100 states, as well as international organizations and civil society representatives, including survivors of the atomic bombings. None of the nuclear-armed states, i.e. the Nuclear Weapon States (NWS) recognized under the 1968 Nuclear Non-Proliferation Treaty (NPT) –China, France, Russia, the UK and the US – nor the DPRK, India, Israel or Pakistan, participated, casting further doubt on the good faith performance of nuclear disarmament obligations by the respondents in the RMI cases pending before the ICJ.

There is general agreement that the ultimate objective is a world free of nuclear weapons. To that end, all states parties to the NPT (and arguably, all states) have a legal duty to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” pursuant to Art. VI, NPT and customary international law. Views diverge, however, on the pathways, means and urgency with which this goal should be attained. Read the rest of this entry…

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Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…

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