magnify
Home Archive for category "Treaty Law"

To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Published on May 14, 2019        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Negotiating Brexit in the Shadow of the Law of Treaties

Published on March 12, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

It is an extraordinary day in British politics today, with the Prime Minister’s ‘enhanced’ Brexit deal to be voted on in Parliament later this evening. The outcome of today’s vote, and the votes that may follow later in the week, is of course anyone’s guess (although the WA will likely be voted down). I have now read through the Attorney-General’s new legal advice on the revised deal and have been following the debate in the House of Commons, and was struck by how remarkably the various issues being debated turned around the customary law of treaties, which operates by default, in the background, unless the UK and EU agree differently. Here are just some – readers are of course invited to discuss any relevant matter in the comments:

(1) What is the legal nature of the Joint Instrument relating to the Withdrawal Agreement, and what are its legal effects? Is it an agreement in the sense of Art. 31(2)(a) VCLT, which defines the ‘context’ of the treaty? Is it something even stronger, an ‘authentic interpretation’ of the WA? Is is also a separate treaty, even though it is not called such, because it is a written agreement between a state and an IO governed by international law, which sets out further obligations that were not in the WA? (The latter is the position of the UK government).

(2) Note in that regard the superb example of constructive ambiguity of the final paragraph of the Instrument, which allows the EU to say, on one hand, that the WA was not reopened or changed as the Instrument simply interprets the WA, and for the UK to argue that meaningful legally binding changes were made to the deal:

Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.

(3) Similarly, what is the legal nature and effects of the UK’s Unilateral Declaration? Is it simply an interpretative declaration by the UK, which is of itself incapable of having any direct legal effects, being simply a statement of the UK’s position? Or is it something more, especially because the EU has not objected to it?

(4) There seems to be consensus that the customary rules on denunciation and suspension of treaty obligations have been displaced by the express dedicated provisions of the WA. This seems to apply also for termination or suspension due to material breach. The WA does not allow the UK to exit the backstop unilaterally; it can only suspend obligations arising from it if the EU is shown to be acting in bad faith and this is determined by the arbitral tribunal established by the WA.

(5) However, the UK’s position is that it CAN unilaterally terminate the WA or the backstop Protocol in case of fundamental change of circumstance/rebus sic stantibus. The Attorney General was explicit on the point repeatedly in the Commons. Never has more been at stake, it seems, regarding the interpretation of the rule in Art. 62 VCLT.

We’ll obviously have to wait and see how this will play out, but again it is clear that Brexit is being shaped critically by the background operation of the law of treaties. It is also remarkable how much importance has been given to questions of form, i.e. how crucial it is for many MPs whether a particular obligation is political or legally binding. Readers may also be interested in the Attorney’s new advice; the Attorney’s prior advice on the WA; an opinion by David Anderson QC, Jason Coppel QC, and Sean Aughey; and an opinion by Philippe Sands QC and David Edward QC.

 

Print Friendly, PDF & Email
 

Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Legislating by Compacts? – The Legal Nature of the Global Compacts

Published on February 28, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

It is not usual to have UN documents splashed across the first pages of the world, exciting animadversion among politicians not known for their respect or knowledge of international law and heated exchanges on the social media; governments (well: one!) collapsing over them; or even having actors read through each word of them on national television. The Global Compact for Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were stars long before they were formally approved by the 73rd UN General Assembly. With the final text decided a month earlier, the GCR was approved on 17 December 2018 as part of an omnibus resolution on the work of the Office of the UN High Commissioner for Refugees (UNHCR) and with an overwhelming majority (181/2/3): only Hungary and the US voted against, with the Dominican Republic, Eritrea and Libya abstaining. After a highly publicized and politicized gathering in Marrakesh (10-11 December 2018), the GCM was approved by the General Assembly on 19 December 2018 with a less impressive majority (152/5/12): The Czech Republic, Israel and Poland joined the nay-sayers and a dozen others, among which five Member States of the European Union (EU) and Switzerland abstained, the last embarrassingly enough being with Mexico one of the co-convenors of the intergovernmental process leading to its adoption. Both Global Compacts are the product of a political commitment, reflected in the New York Declaration on Refugees and Migrants adopted by the UN General Assembly on 19 September 2016, and they constitute the latest acts in a process of rethinking the norms and procedures governing the management of human mobility. Both Compacts proclaim themselves as non-legally binding, the result of a wide cooperative effort among governments and between governments and civil society. The discussion on their legal nature could surely have stopped here. And yet it goes on – even in this blog. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Legislating by Compacts? – The Legal Nature of the Global Compacts

Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state

Published on November 22, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on this blog (see here and here) and elsewhere. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’. Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.

When a treaty uses the word ‘state’

The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship.  We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Global Compact for Migration: to sign or not to sign?

Published on November 21, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The Global Compact for Safe, Orderly and Regular Migration (final draft of 13 July 2018) is scheduled for adoption at an intergovernmental conference in Marrakesh in December 2018. But in the run-up to this conference, several states, beginning with the United States already in 2017, now followed by Austria, Hungary, the Czech Republic, and others, have announced that they will  not sign the text. Will refusal to sign be relevant in terms of international law? What is the juridical quality of the Compact, which legal consequences does it have, and which normative “ripples” might it deploy in the future? The controversy over the Compact sheds light on the legitimacy of international law-making processes and on the precarious normative power of international law.

A Brief Glance at the Contents

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The Compact’s “guiding principles” are, inter alia, people-centeredness, international cooperation, national sovereignty, rule of law and due process, and sustainable development (para. 15). These are well-established and to a large extent also legally entrenched principles. The 23 “objectives” are partly generally recognised such as saving lives (objective 8), respond to smuggling (objective 9), or eradicate trafficking (objective 10). Some mainly correspond to interests of states of origin (such as promoting transfer of remittances, objective 20), others basically satisfy interests of receiving states (such as facilitating return and readmission (objective 21). In substance, the Compact partly repeats international law as it stands or refers to existing instruments (see notably preamble para. 2), partly contains platitudes, and partly contains novel ideas. Read the rest of this entry…

Print Friendly, PDF & Email
 

Lost in Space? Gaps in the International Space Object Registration Regime

Published on November 19, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Despite having been operational for over 15 years, the satellites NSS-6 and NSS-7 are missing from the United Nations Register of Objects Launched into Outer Space (‘International Register’). Just as we do not accept unregistered cars on our roads, we should not accept unregistered space objects in orbit. Registration ensures that the state responsible for a specific space object can be readily identified, and, if necessary, presented with a claim under the Convention on International Liability for Damage Caused by Space Objects.

For this reason, under the international space object registration regime, all space objects must be registered by a state. So which state is shirking their duty to submit NSS-6 and NSS-7 to the International Register?

The two satellites were built by Lockheed Martin Commercial Space Systems (‘Lockheed Martin’), a United States-based corporation, for New Skies International NV (‘New Skies’), a Dutch corporation. Launch services were provided by Arianespace SA (‘Arianespace’), a French corporation. Both launches took place from French territory. Once in orbit, ownership of the satellites was transferred from Lockheed Martin to New Skies. So at least three states are involved – and the question is which of these states should register NSS-6 and NSS-7 (spoiler alert: I think it’s the Netherlands). This episode is used as a case study to illustrate the ambiguities and gaps that exist in the international space object registration regime. I conclude the post by making a proposal which seeks to find a way to close these gaps. Read the rest of this entry…

Print Friendly, PDF & Email
 

Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute

Published on November 12, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Following oral hearings held in September, the Appeals Chamber of the International Criminal Court (ICC) is currently deliberating in Jordan’s Appeal of the Pre-Trial Chamber’s decision holding that it had failed to cooperate with the ICC by refusing to arrest and surrender Sudan’s President, Omar Al-Bashir, when he visited Jordan. Central to the determination of whether Jordan, a party to the ICC Statute, failed to comply with its obligations of cooperation under the Statute is the issue of whether Jordan was obliged to respect the immunity ratione personae that the Sudanese President would ordinarily be entitled to as a serving head of state.

As is well known, when the ICC seeks to exercise its jurisdiction over a state official who ordinarily possesses immunity under international law from foreign criminal jurisdiction, the question of immunity may, potentially, arise at two levels. First, the issue of international law immunity with respect to the ICC may possibly arise at the so-called ‘vertical level’, i.e in the relations between the ICC, on the one hand, and the accused person and his or her state, on the other. The question that arises here is whether the accused person (as a state official entitled to international law immunities) or his or her state, may plead those immunities before the ICC itself, such as to prevent the Court from exercising jurisdiction over him or her. Second, and more commonly, the issue of immunity will arise at the so-called ‘horizontal level’, i.e in the relations between a state that is requested by the ICC to effect an arrest or surrender, on the one hand, and the state of the accused person, on the other. Here, the question is whether a state that is requested by the ICC, to arrest or surrender the official of another state, may do so, where to do so would require the requested state to violate the immunities that the foreign state official ordinarily possesses under international law. In particular, the question at this horizontal level is whether there is something about the ICC’s request for cooperation that would mean that the obligations which a state ordinarily owes to another to consider inviolable the person of a serving foreign head of state no longer apply. This is the main question that the Appeals Chamber is called upon to resolve in the Bashir case. In this post, we do not propose to examine the range of arguments put to the Chamber on this question. Rather this post will consider one specific question that is critical to the Court’s assessment and to the more general question of how the ICC Statute affects the immunity of state officials.

The post considers whether the provision of the Rome Statute that removes immunity – Art. 27(2) – only removes immunity at the ‘vertical level’ (before the Court itself) or whether it does so at the ‘horizontal level’ (before national authorities) as well. In particular, the post throws new light on this question through an examination of the drafting history of that provision. Consideration of the drafting history shows that the drafters of the provision considered, throughout the period of elaboration of the Statute, that what would become Art. 27 was to have effect not just in proceedings before the ICC itself but also in national proceedings related to the ICC’s exercise of jurisdiction. Read the rest of this entry…

Print Friendly, PDF & Email