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Immunity of Warships: Argentina Initiates Proceedings Against Ghana under UNCLOS

Published on November 20, 2012        Author: 

Another chapter has begun in the saga of NML Capital Ltd’s attempts to collect on its holdings of Argentinean bonds (see here for earlier reporting on EJIL:Talk!) with the initiation of inter-State proceedings by Argentina against Ghana under the 1982 UN Convention of the Law of the Sea.

It will be recalled that on 2 October 2012, whilst on an official visit, the Argentinean naval training vessel the ARA Libertad was arrested in the Ghanaian port of Tema.  Its arrest was ordered by Justice Richard Adjei Frimpong, sitting in the Commercial Division of the Accra High Court, on an application by NML to enforce a judgment against Argentina obtained in the US courts.   The judge considered that the waiver of immunity contained in Argentina’s bond documents (which are at the heart of the dispute with NML) operated to lift the vessel’s immunity from execution. That waiver provides that:

To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the Foreign Sovereign Immunities Act to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment).

Argentina has strongly resisted this assertion of jurisdiction, claiming that it violates the immunity enjoyed by public vessels, which cannot be impliedly waived.  It appears that the vessel remains under the control of a skeleton crew, who have prevented any efforts by the Ghanaian authorities to move the vessel, whilst being preventing themselves from leaving port.

Both States being parties to UNCLOS, on 29 October 2012 Argentina instituted arbitration proceedings against Ghana under Annex VII UNCLOS (Ghana not having made a declaration under Article 287 UNCLOS: see Article 287(3)).  On 14 November 2012 Argentina applied to the International Tribunal for the Law of the Sea for the prescription of provisional measures prior to the constitution of the Annex VII arbitration tribunal (ITLOS press release here). Argentina may well have the law on its side as regards State immunity for warships.  It may be, however, that ITLOS and an UNCLOS Annex VII arbitral tribunal are not the right fora for the settlement of its dispute with Ghana.

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The Gotovina Omnishambles

Published on November 18, 2012        Author: 

Friday’s judgment in Gotovina and Markac by the ICTY Appeals Chamber (summary; judgment), in which it by 3 votes to 2 reversed a unanimous Trial Chamber and acquitted the defendants, is a disaster at almost every level. I say this not as an aggrieved Serb lamenting the selectiveness of international justice and its failure to punish crimes against his own people – I have long since developed antibodies to all forms of nationalism, including the very virulent type thriving on self-victimization, and I have no personal axe to grind here. I say this rather as an international (human rights) lawyer who has always thought of the ICTY as an indispensable, if imperfect, instrument of justice for the atrocities of the Yugoslav conflicts. That said, how and why then is the Gotovina appeals judgment so bad? To my mind, the problem is not with the acquittal as such – even though as far as public opinion in the former Yugoslavia is concerned the bottom line is all that mattered. Rather, the problem is with the process, the reasoning, the appearances, and the broader repercussions that all these will have.

First, with regard to process: as the dissents by Judges Agius and Pocar correctly point out, the majority make a complete mess of the appellate standards for review. Readers will recall that in the common law-inspired procedure of the ICTY the main task of the Appeals Chamber is to correct errors of law made by the Trial Chamber. The Trial Chamber is owed deference with regards to its findings of fact, which are not to be disturbed lightly on appeal, but only if no reasonable trier of fact could have made the relevant finding on the strength of the record. In short, unlike in most continental systems, the appellate process should not amount a retrial, a de novo examination of the entire case. This ensures both procedural economy and the integrity of the exhaustive fact-finding process in the trial court.

While the majority endorses these standards as they are set out in the ICTY’s long-established jurisprudence, it does not actually follow them – to the extent that its approach to standards of review is actually even discernible, as I will now explain. The whole case ultimately turned around the Trial Chamber’s unfortunate finding that in assessing the shelling by the Croatian artillery of the four Serb towns in the separatist Serb entity in Croatia, chief of them Knin, any shell that fell further than 200 meters from a legitimate military target in the towns should be presumptively considered as evidence of an unlawful indiscriminate attack. The Appeals Chamber was actually unanimous that this rigid standard was not supported by the evidence in the trial record and was not given adequate reasons for by the Trial Chamber.

So far so good. But what the majority then does with this finding turns appellate review on its head. The majority does not explain whether the Trial Chamber’s error with regard to the 200 meter standard itself was an error of law or an error of fact. If it was the former, the majority would have had to articulate a new, proper legal standard for testing the facts established in the record, upon whose application we could know whether the shelling of Knin and the other towns was indiscriminate or not. If it was the latter, the majority would have had to pay due deference to the totality of the factual findings made by the Trial Chamber and should only have disturbed them if no reasonable trier of fact could have found that the shelling was indiscriminate on the basis of all of the evidence in the record.

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A Reply to Vahagn Avedian – State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 13, 2012        Author: 

Pulat Tacar has been Co-Chairperson of the Turkish National Commission for UNESCO (1995–2006), Ambassador of Turkey to UNESCO (1989–1995), Ambassador of Turkey to the European Communities (1984–1987) and to Jakarta (1981–1984). Maxime Gauin is a researcher at the International Strategic Research Organization (USAK, Ankara) and a PhD candidate at the Middle East Technical University. In this post, which summarises their article published in (2012) 23 EJIL 821-835, they respond to the piece by Vahagn Avedian.

The Armenian question is especially sensitive, not least because of the long accumulation of prejudices against Turks, Armenian terrorism in 1973–1991, the Armenian invasion and occupation of western Azerbaijan since 1992, and more recently the virulent anti-Turkish stance of Anders Breivik in his manifesto and the various campaigns or attacks by Armenian nationalists. So, it is better to ease the tensions instead to fuel them.

In this response to Vahagn Avedian’s EJIL article and post, we would like to raise two issues: Is genocide a pertinent concept to define the fate of the Ottoman Armenians during WWI?; and has the Republic of Turkey legal responsibilities for this fate?

The Terms of the Dispute

The term ‘genocide’ is a legal term; it describes a crime specifically defined by the 1948 Genocide Convention and must be addressed accordingly. The existence of the crime of genocide can be legally determined only by the judges of a competent tribunal on the basis of the prescribed legal criteria and after a fair and impartial trial. The Genocide Convention does not allow for convictions on the grounds of genocide by legislatures, scholars, pamphleteers, politicians, or others.

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State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 12, 2012        Author: 

Vahagn Avedian is a PhD candidate in the Department of History, Lund University and Chief Editor of Armenica.org. This post summarises his article which was published in (2012) 23 EJIL 797-820.

The Republic of Turkey’s denial of the Armenian genocide has evolved, abandoning the simple denial of the ever growing facts. The sophistication includes revisionism, reinterpretation of the UN Genocide Convention, but also pleading the discontinuity between the Ottoman Empire and present-day Turkey. This last argument is quite interesting due to its paradoxical nature: if there is a discontinuity, how come Turkey, unlike Germany, is ardently defending its otherwise flawed predecessor? West Germany chose to reinstate its international prestige by condemning the wrongdoings of Nazi Germany and compensating the victims. While condemning the crimes, East Germany refused to accept responsibility to compensate, referring to the discontinuity between the two states. Turkey has chosen to ardently refute it all together. This article aims to elucidate this aspect of the Turkish denial as a deliberate means to evade the issue of compensation. Furthermore, by failing to stop the WWI era massacres and confiscations (which aimed to create a ‘Turkey for Turks’), but more importantly, by continuing the same internationally wrongful acts committed against the Armenian population and other minorities, Turkey made itself responsible for not only its own actions, but also for those of its predecessor, the Young Turk Government. In my article, I show this by applying the norms of existing international law in regard to state identity, continuity, and responsibility on the historical data at hand.

Before we continue, it must be emphasized that I do not limit my analysis to the definition in the UN Genocide Convention and its legal restraints. Instead, I examine the issues from the perspective of internationally wrongful acts more generally.

Turkey as the Continuation of the Ottoman Empire

A first logical step would be to establish the identity of the two Turkish states and possible continuity. Dividing the determining factors into ‘objective’ and ‘subjective’ categories, K. G. Bühler asserts that it is not merely ‘objective’ factors such as substantial part of territory, population, and armed forces, that bear upon state identity and continuity, but ‘subjective’ factors, such as the successor’s claim to continuity and its self-conception, also do matter [State Succession and Membership in International Organizations: Legal Treaties versus Political Pragmatism (2001), at 14]. Recent changes in Europe, especially the dissolution of Soviet Union and Yugoslavia confirm this vision of state identity and continuity. Turkey’s case is quite similar to that of Russia which regarded as the continuation of the Soviet Union. In fact, there are two arbitral rulings: the Ottoman Debt Arbitration and Roselius & Co v. Karsten and the Turkish Republic, which regard Turkey as the continuation of the Ottoman Empire. Read the rest of this entry…

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Argentina’s Sovereign Debt Default Cases: Some Recent Developments in a Continuing Saga

Published on November 9, 2012        Author: 

More than ten years have passed since Argentina defaulted on its external debt obligations in December 2001. However, the repercussions of the Argentine financial crisis continue to contribute to the development of international law. This brief note provides a short overview of the most recent decisions of different domestic courts arising out of this Argentinian saga: NML Ltd et al. v the Republic Argentina before the US Court of Appeals decided on 26th October 2012 (see reporting here, here, here and here), and the decision of the Ghanaian Commercial Court of 2nd October 2012 (see Opinio Juris, BBC, Al Jazeera,  and elsewhere: here, and here), while reference will be made to the NML v Argentina case, before the UK Supreme Court which was decided on 6th July 2011 (see reporting here and here).

These three cases pronounced on inter-related, but distinct, legal issues (enforcement of foreign awards, state immunity, and non-discriminatory treatment of bondholders) arising out of the Argentine decision to default on its external debt. In combination, they have far-reaching legal implications. It is noteworthy that different courts from around the globe repeatedly ruled in favour of bondholders and against Argentina. Although Argentina in and out of court has invoked political arguments, such as the implications of the court’s approach to the Eurozone crisis resolution efforts (in NML v Argentina before the US Court of Appeals) and the nature of the claimants as ‘vulture funds’ (see here reacting to the Ghanaian Commercial Court ruling; see also Lord Phillips and Lord Collins in NML v Argentina  [2011] UKSC 31, paragraphs 1 and 104-107 respectively), domestic courts consistently prioritise a more legal or stricto sensu approach and promote the Rule of Law in international economic and financial relations.

Background and US Proceedings

After the default in 2001, Argentina made exchange offers to holders of bonds, which were governed by the Fiscal Agency Agreement (FAA). Read the rest of this entry…

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Remote Attack and the Law

Published on November 7, 2012        Author: 

Dr William BOOTHBY Dr Bill Boothby, the former Deputy Director of Legal Services for the Royal Air Force, published through OUP his doctoral thesis on Weapons and the Law of Armed Conflict in 2009; he has now published his second book, again through OUP, on The Law of Targeting.

This post looks at three modern forms of distance attack, by autonomous unmanned platforms, by cyber means and in outer space, and asks whether they challenge, or are challenged by, contemporary law.  It concludes that in any challenge the law is likely to prevail, and suggests the extent to which, and conditions on which, such novel and increasingly controversial technologies may indeed prove to be legally compliant.

On 29 November 2011, The Guardian, discussing US drone strikes in Pakistan, asserted that the US military makes deadly mistakes all the time.  Al Jazeera has reported that during the period May 2011 to March 2012 about 500 people, many of them civilians, were killed in US drone strikes to push Al Qaeda from the Arabian Peninsula.  And yet, CNN recently reported New America Foundation research showing a markedly reduced civilian proportion of casualties in US drone strikes in Pakistan (from about 50 percent in 2008 to close to zero) which the researchers attribute inter alia to a presidential directive to tighten up target selection, the use of smaller munitions, longer linger periods over targets and congressional oversight.

So is new technology challenging the law, or is it the other way round?

There is nothing new about the idea of fighting at a distance.  The heroic Homeric tradition of the phalanx and of the hoplite fighting at close quarters was already in ancient Greek times called into question by the use of the bow, artillery and catapults, and the process of remote attack has continued to develop in succeeding centuries and millennia, spurred on by the evident military advantage such methods yield. But the Homeric objections persisted, for example during the Kosovo conflict in the form of objections to the NATO 15,000 feet bombardment policy.

And yet since World War II, the capacity to deliver ordnance from the air with precision has developed apace –the statistics are startling in terms of the reduced number of sorties required to get a bomb delivered from high altitude to within a given distance of a hypothetical target. So, and forgive a degree of over-simplification, the lay assumption that the closer the pilot is to the target the better has been trumped by technological innovation.

Is there anything qualitatively different about future developments in the realm of remote attack?

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Job Announcement: Glasgow

Published on November 6, 2012        Author: 

The University of Glasgow School of Law is looking to hire a professor or a reader in international law and international security – details here.

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Welcome to the New EJIL:Talk!

Published on November 5, 2012        Author: 

It is now nearly four years since we launched EJIL:Talk! in December 2008. We are delighted that what, at the time, seemed to be an experiment and a journey into an unknown world has been tremendously successful. We kept the look of the blog the same but over the past few months we have felt that the blog needed some updating. So we decided to refresh the “look and feel” and to add some new technical features as well.

Welcome to our new look! We very much hope you like it. For quite some time, readers have asked whether there is a way in which they can get email updates of new posts. We have now added this feature and readers are invited to subscribe (on the right) for email updates. Readers can, of course, continue to subscribe through an RSS feed reader (e.g. Google Reader).  In addition, you will now find us on Twitter and Facebook, providing alternative ways in which you can get updates. Our presence on these forms of social media is something of an experiment. If they prove to be valuable to readers, we will keep them, if not, we will have a rethink.

Readers will notice that on the right (towards the bottom of the page) we now have a list of categories within which our posts fall. This should make it easier for you to search for previous posts or indeed simply to browse what we have been writing in particular areas. We have categorised all of our previous posts. We are indebted to Michelle Wilkinson (my former graduate student at Oxford) for going through every single post for us and putting them into a category. Readers may also wish to search for posts by author or by date and we have drop down menus for those lists. We have added a “From The Archives” box which will remind readers each week of previous posts we’ve published.

The new site should be more mobile-device friendly making it easier to read EJIL:Talk! on the go.  For those of you who want to read on the go but in hard copy (!) another feature we have introduced is a print button. This should make it easier for you to print posts in a nice format, if you wish. This might seem like a strange thing for a blog. No doubt most of you simply read online. However, we are aware that a number of you do print these posts. It has been interesting to me to bump into people at conferences and the like (or indeed on a bus in Israel!) who happen to be reading printed material from EJIL:Talk!

We would be pleased to get comments from you on how we can continue to improve.

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