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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2)

Published on August 7, 2015        Author: 

As we described in our first post of last week, the completion of the arbitration between Croatia and Slovenia has been thrown into doubt by the revelation of illicit contacts between the Slovenian arbitrator (‘Slovenia’s arbitrator’? Or ‘the arbitrator of Slovenian nationality’? More on this in our next post) and the Slovenian agent. On 24 July, Croatia applied to the Tribunal to ‘suspend the proceedings with immediate effect’ and invited ‘the remaining members of the Tribunal to review the totality of the materials presented, and reflect on the grave damage that has been done to the integrity of the entire proceedings’. On 28 July, the Tribunal published a press release in which it announced that a hearing on the Croatian application would be arranged ‘in the coming days’. On 30 July, the arbitrator of Croatian nationality, Professor Budislav Vukas (formerly Vice-President of the International Tribunal for the Law of the Sea), resigned from the arbitration, and on July 31 Croatia itself formally informed the Tribunal that it ‘cannot continue the process in good faith’ and that ‘in accordance with the relevant provisions of the Vienna Convention on the Law of Treaties’ it ‘informed the other Signatory to the Agreement of its intention to terminate’ the Arbitration. On 3 August, ICJ President Abraham resigned from the Tribunal, informing it that he had agreed to his appointment to ‘help restore confidence between the Parties and the Arbitral Tribunal and to allow the process to continue normally, with the consent of both Parties’ but that ‘the current situation cannot meet that expectation’ so that ‘it was no longer appropriate’ for him to serve as arbitrator.

At the end of our first post, we posed a number of preliminary questions that this scandal raises. In this post, we shall attempt, if not to provide definitive answers, at least to illustrate the context and consequences of these issues, with specific attention to the immediate repercussions for the arbitration. We shall follow this with a Part 3 post, on the wider implications for the international legal profession and the international judicial system.

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The UK Court of Appeal in Serdar Mohammed: Treaty and Customary IHL Provides No Authority for Detention in Non-international Armed Conflicts

Published on August 6, 2015        Author: 

Last week’s judgment in Mohammed v. Secretary of State for Defence is rich in analyses and observations concerning detention in non-international armed conflicts (NIACs). One of the key issues assessed concerns the power to detain in NIACs under IHL.

The Secretary of State’s position on this point commenced with a challenge to traditional classifications of armed conflict, contrasting purely internal conflicts with armed conflicts between two States (para 168). It was contended that the legal position concerning the authority to detain in a NIAC now reflects a more complex factual position than that captured under traditional classifications. A third classification must now be recognized: ‘internationalised’ NIACs. This echoes the ICRC’s Opinion Paper on internment, which speaks of ‘NIACs with an extraterritorial element’, in which “the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups” (page 7).

To paraphrase, ‘if it looks and feels like an international armed conflict, let us apply IHL rules on international armed conflicts by analogy’. This is a dangerous approach that the Court of Appeal carefully avoided, instead focusing on its proposed implications.

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The Authority to Detain in NIACs Revisited: Serdar Mohammed in the Court of Appeal

Published on August 5, 2015        Author: 

As the English Court of Appeal breaks for the summer vacation, scores of international lawyers are about to descend on one of its latest decisions: Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843. In this 109-page long judgment, the Court upholds the conclusion reached at first instance by Leggatt J that British armed forces participating in ISAF lacked the legal authority under international law to detain suspected insurgents captured in Afghanistan.

The implications of Serdar Mohammed are considerable. The case raises difficult questions about the place the European Convention on Human Rights (ECHR) occupies in the international legal order and, more broadly, about the relationship between international human rights law and international humanitarian law (IHL). Those who have followed this debate will recall that we were not convinced by Leggatt J’s reasoning on these points (see here, here and here). In so far as it upholds his main conclusions, we also find ourselves in disagreement with the judgment now delivered by the Court of Appeal. Rather than rehearsing our arguments on the underlying issues in full (see in detail here), in this post we would like to briefly comment on those aspects of the Court’s decision which, in our view, take the debate forward and those which do not. Read the rest of this entry…

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The Human Rights Committee, Treaty Interpretation, and the Last Word

Published on August 5, 2015        Author: 

July 24 marked the end of the most recent session of the Human Rights Committee, a part-time body operating under the International Covenant on Civil and Political Rights, 999 UNTS 171. At its most recent session – its 114th – the Committee adopted “Concluding Observations” concerning seven States as part of the state-reporting process. It also adopted “Views” with respect to 32 individual petitions lodged against States under the Covenant’s Optional Protocol, 999 UNTS 302, finding violations in 17 cases, as reported in the UN press release issued to mark the session’s closing. The Committee also held a half-day discussion in preparation for a new “General Comment” on the right to life, possibly for release at the end of 2016, and an informal meeting with States parties, of which there are now 168, confirming the Covenant’s status as a leading human rights treaty.

As usual, the Human Rights Committee also engaged in dialogue with both national and international human rights NGOs, many of whom brought forward issues and perspectives of use to the Committee’s understanding of State reports. The Committee also heard from national human rights institutions (NHRIs). But organizations and institutions have goals and mandates, just as those who represent States operate under instructions, and one can understand that those with a goal to achieve in their efforts to influence the content forthcoming from a treaty-monitoring body may not wish to provide a critique of the treaty body itself, at least not while the Committee is meeting. But critiques have value for the overall system for the protection and promotion of human rights, with a treaty body’s sense of its role in the field having potential implications for continuing State support.

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Cyber Responses “By The Numbers” in International Law

Published on August 4, 2015        Author: 

According to open source reports, the Obama administration is considering how to retaliate against China for hacks into the US government’s Office of Personnel (OPM). Although it has hesitated to openly pin the rose on China, the reports raise questions as to how it might respond consistent with international law.

The issue of responses to harmful cyber operations has generated a fair degree of rather confused dialogue among politicians, pundits and the public. In the aftermath of, inter alia, the Sony hack and the OPM incident, it might be useful to take a by-the-numbers look at the international law governing responses to harmful cyber operations. The International Group of Experts that prepared the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare under the auspices of the NATO Cooperative Cyber Defence Centre of Excellence dealt with the topic briefly. A follow-on project, “Tallinn 2.0,” is presently underway to examine these issues in greater depth. As director for both projects, I have found the most useful lesson to be that, despite persistent claims to the contrary by international law and policy alarmists, the extant international law provides a linear structure, and robust means, for response. In the same way that international law generally balances national interests and international stability in the non-cyber realm, so too does it with respect to cyber. What follows is a summary of my approach to deconstructing the applicable law.

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Revisiting ‘Interested Parties’ in Investor-State Arbitration: Ticaret Procedural Order No. 3’s Compelled Disclosure of Third-Party Funders

Published on August 3, 2015        Author: 

On 12 June 2015, the arbitral tribunal – composed of Professors Julian Lew, Laurence Boisson de Chazournes, and Bernard Hanotiau – in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti v. Turkmenistan [ICSID Case No. ARB/12/6] issued its landmark Procedural Order No. 3, ordering the claimant-investors therein to confirm:

 “whether its claims in this arbitration are being funded by a third-party funder, and if so, shall advise Respondent [Turkmenistan] and the Tribunal of the name or names and details of the third-party funder(s), and the nature of the arrangements concluded with the third-party funder(s), including whether and to what extent it/they shall share in any successes that Claimants may achieve in this arbitration.” (Tribunal’s Decision in Order, para. 13.)

Ticaret Procedural Order No. 3 is the first such order issued in the ICSID (International Centre for Settlement of Investment Disputes) system that directly compels parties to disclose third-party funding arrangements in investor-State arbitration. Most importantly, it is the first publicly known arbitral order to confer (tacit) recognition to the critical role of third-party funders as part of the complex spectrum of interested parties in an investor-State arbitration. Apart from host States and investors, tribunals have thus far accepted that assignments of interest may be made by investor-claimants, without jeopardizing their standing in the dispute. In Ceskoslovenska Obchodni Banka, A.S. (CSOB) v. Slovak Republic [ICSID Case No. ARB/97/4, Decision on Jurisdiction, 24 May 1999, para. 32], held that, even in cases of assignments or subrogations of interest by investor-claimants, the “absence of beneficial ownership by a claimant in a claim or the transfer of the economic risk in the outcome of a dispute should not and has not been deemed to affect the standing of a claimant in an ICSID proceeding, regardless of whether or not the beneficial owner is a State Party or a private party.” The Ticaret Procedural Order No. 3 is the first instance that an investor-State tribunal openly conceded that a third-party funder’s financing arrangements with an investor-claimant could have a significant bearing on the substantive outcomes and procedural fairness of the arbitration. Read the rest of this entry…

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Announcements: CfP Junior Scholars Roundtable on Settling Tax Disputes under Int’l Law (Luxembourg); Chatham House Meetings on Business & Human Rights, Foreign Affairs in National Courts (London)

Published on August 1, 2015        Author: 

1.  Call  for papers for junior scholars roundtable at University of Luxembourg conference on the settlement of tax disputes under international law, 12-13 November 2015, Luxembourg.  On  12-13  November  2015,  the  Research  Unit in Law of the University of Luxembourg,  with  the  support  of  the  Fonds  National  de  la Recherche Luxembourg,  will be holding a conference on the settlement of tax disputes under  international law, with the aim of analysing taxation issues through the  lens  of  international law and its dispute settlement procedures, and bringing   together  international  lawyers  and  tax  lawyers  to  do  so. Confirmed speakers already include Prof. Mads Andenas (University of Oslo), Prof. Ilias Bantekas (Brunel University), Dr N. Jansen Calamita (BIICL), Dr Abba Kolo (CEPMLP Dundee), Dr Sébastien Manciaux (Université de Bourgogne), Dr  Luca  Pantaleo  (TMC  Asser  Instituut),  Prof.  Alexander Rust (Vienna University  of  Economics and Business) and Epaminontas Triantafilou (Quinn Emanuel). Part of the conference will be a roundtable discussion for junior scholars; giving  them  an opportunity to present their research on issues covered by the conference and to receive feedback from the conference speakers.  Those selected  will  receive  a  bursary  to fund their travel and accommodation expenses, and may also have the opportunity to contribute to the conference proceedings,  which will be published.  We are now calling for applications to  present  a  paper  at  the  roundtable, and invite junior scholars (PhD candidates,  post-docs and fellows) with research interests in the field to apply by submitting an abstract (not exceeding 800 words) of their proposed paper,  together  with  a  copy  of  their  CV,  to Prof. Matthew Happold (Matthew.Happold {at} uni(.)lu).  The deadline for submissions is 5 September 2015.

2.  The International Law Programme at Chatham House will be hosting a meeting on ‘Foreign Affairs in National Courts: The Role of the Executive’ on Wednesday 23 September. The meeting will consider whether current practice is effective in maintaining a proper balance between the rights of litigants to have their claims decided and the interests of states in securing court decisions that do not harm the peaceful conduct of international relations. For further details and to enquire about registering see here.

3.  The International Law Programme at Chatham House will be hosting a meeting on ‘Business and Human Rights: Bridging the Governance Gap’ on Monday 28 September. The meeting will consider what trends are likely to emerge in the field of business and human rights over the next decade and will coincide with the launch of a Chatham House research paper. For further details and to enquire about registering see here.

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Breaking: Court of Appeal Affirms Serdar Mohammed

Published on July 30, 2015        Author: 

Breaking news: today the English Court of Appeal  unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow.  I imagine an appeal to the Supreme Court is virtually inevitable.

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Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal

Published on July 28, 2015        Author: 

The Arbitration between Croatia and Slovenia, brokered by the European Commission, conducted under the auspices of the Permanent Court of Arbitration and concerning delimitation of the maritime and land boundary between the two States, has been ongoing over the past three years. By the Tribunal’s estimation, it has featured nearly 1,500 documentary exhibits and legal authorities and 250 figures and maps. Following the conclusion of the oral phase of proceedings in June 2014, the Tribunal issued a press release on 10 July of this year in which it announced that the award would be promulgated in mid-December.

All of this progress towards the peaceful settlement of the dispute was thrown into sudden doubt by the revelation that the arbitrator of Slovenian nationality, Dr Jernej Sekolec, was secretly in contact with the Slovenian agent, Simona Drenik. These contacts, which allegedly took place during two secret telephone conversations on 15 November 2014 and 11 January 2015, included discussions of how to best influence the other arbitrators to rule in Slovenia’s favour, the sharing of Slovenian submissions directly with Dr Sekolec (who stated that he would present them to the other arbitrators as his own ‘notes’ on the case), and the advance leaking of the deliberations of the Tribunal to Ms Drenik, including the tip that the Tribunal would award to Slovenia at least two thirds of the disputed waters it had claimed.

The story was broken on Wednesday 22 July by the Croatian daily newspaper Večernji list (acting on information first leaked in the Serbian tabloid Kurir), which published transcripts and audio recordings of the conversations between the two on its website. For a description in English, see this story by the reputable NGO Balkan Insight.

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