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Philippines Initiates Arbitration Against China over South China Seas Dispute

Published on January 22, 2013        Author: 

Today, the Philippines has initiated arbitral proceedings against China with regard to China’s claims over much of the South China seas. Those Chinese claims have led to serious disputes between China and several of its neighbours in East Asia with those disputes intensifying recently. Both the Philippines and China are parties to the United Nations Convention on the Law of the Sea and Part XV of that treaty provides for compulsory arbitral/judicial jurisdiction over disputes arising under that Convention. As is well known, UNCLOS Part XV provides for a choice of procedure and States parties may choose either the International Tribunal for the Law of the Sea (ITLOS); the International Court of Justice (ICJ); or an arbitral tribunal as their preferred means for compulsory settlement. In the absence of a choice, arbitration is the default mode of settlement. Also, where the disputing parties have not chosen the same means, the dispute shall be referred to arbitration under annex VII of the Convention (See Art. 287, paras. 1, 3 & 5). As neither the Philippines nor China has made a choice of tribunal, the Philippines has referred this dispute to arbitration. The Philippines notification of the proceedings and its statement of claim can be found here.

Although UNCLOS provides for compulsory jurisdiction over most matters arising under the Convention,  Art. 298 provides that a State may at any time declare that it does not accept compulsory jurisdiction over certain specified categories of disputes. In particular, a State may exclude compulsory jurisdiction with respect to “disputes concerning the interpretation or application of  articles 15, 74 and 83 relating to sea boundary delimitations, or those  involving historic bays or titles”.  China did precisely this in 2006. So, the first thing the Philippines would need to do would be to persuade the arbitral tribunal that it has jurisdiction over the case. To do that it would need to show that the dispute it has submitted to the arbitral tribunal falls outside China’s exclusion of jurisdiction under Art. 298(1)(a). This may not be so easy.

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Filed under: EJIL Analysis, Inter-State Arbitration, International Tribunals, Law of the Sea, Maritime Delimitation, Territorial Disputes
 
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The Mysterious Art of Drafting International Criminal Trial Judgments

Published on January 21, 2013        Author: 

 Marko Divac Öberg is a Legal Officer in Chambers at the ICTY.The opinions expressed here are made in individual capacity and do not necessarily correspond to those of the Tribunal, or the United Nations in general.

The drafting of international criminal trial judgments remains largely shrouded in mystery. There is almost no academic literature on the topic. Of course, the secrecy of deliberations should be respected. However, it takes skill to make a high quality product. Skills need to be learned and it is hard to learn from mystery, so it is worth giving this issue some systematic thought.

Drafting an international criminal trial judgment is a dangerously difficult task. The cases are often very complex. The parties tend to err on the side of tendering more evidence than needed, and in the heat of the action the judges are rarely in a position to deny admission to all the evidence that later turns out to be irrelevant or redundant. Witness testimony and documentary evidence accumulate, at times quite rapidly, for many months if not years. For instance, the trial phase of the Prlić et al. case lasted over four years. The witness transcripts and documentary evidence can easily add up to tens of thousands of pages. In the Popović et al. case, the evidence comprised more than 58,000 exhibit pages and 34,000 transcript pages of trial hearings.

When finally all the evidence has been received, the accused – who are presumed innocent – have often spent years in detention. They are entitled to an expeditious trial, so there is no time to lose before issuing the trial judgment. However, the judges need sufficient time to recall and deliberate on the massive amounts of evidence received over a long period. They also need time to prepare a reasoned, written judgment. In the Nyiramasuhuko et al. case, more than two and a half years passed between the close of evidence and the issuing of the trial judgment.

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Filed under: EJIL Analysis, International Criminal Law, International Tribunal Procedure
 
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The European Court of Human Rights Gets It Right: A Comment on Eweida and Others v the United Kingdom

Published on January 19, 2013        Author: 

Dr Erica Howard is senior lecturer in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

The European Court of Human Rights has delivered its Chamber judgment in the case of Eweida and Others v. the United Kingdom application nos. 48420/10, 59842/10, 51671/10 and 36516/10).

These cases concerned four practicing Christians. Ms Eweida, who worked for British Airways as check in staff, and Ms Chaplin, who worked as a nurse, both wanted to wear a cross in a visible way with their uniforms. Ms Ladele, a registrar of births, deaths and marriages, and Mr McFarlane, a relationship and psycho-sexual counsellor, both believed that homosexual relationships are contrary to God’s law and complained that they had been dismissed for refusing to carry out certain parts of their duties which they considered condoned homosexuality.

The European Court of Human Rights held that Ms Eweida’s and Ms Chaplin’s wish to wear a cross in a visible manner was a manifestation of their belief (paragraphs 89 and 97). In relation to Ms Eweida, the Court held that a fair balance had not been struck between her right to freely manifest her religion and British Airways wish to protect its corporate image and that the domestic courts had given too much weight to the latter (paragraph 94). Therefore, her right to manifest her religion under Article 9 was violated and it was not necessary to examine the claim under article 14 separately (paragraph 95).

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Filed under: EJIL Analysis, European Convention on Human Rights, Freedom of Religion, Prohibition of Discrimination
 
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Catalonia’s Independence: A Reply to Joseph Weiler

Published on January 18, 2013        Author: 

Nico Krisch (Hertie School of Governance, Berlin & IBEI, Barcelona)

Joseph Weiler’s polemic on Catalan independence has certainly stirred up debate (see the comments on the piece), which is always helpful. But as much as I admire much of Weiler’s academic work, I find this intervention heavily misguided in substance, in part because of a misunderstanding of the reasons behind the Catalan drive, in part because of a misreading of the nature of independence claims in general. I write this having spent a significant part of the last decade in Barcelona, with a growing appreciation for the concerns of Catalans and of sub-state nationalism in general, which has certainly toned down my earlier, perhaps rather naïve cosmopolitanism that had little time for nations and borders.

Weiler laments a return of Catalans to ‘an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible’, and he finds it ‘laughable and impossible to take seriously Catalan arguments for independence’ when they have a statute of autonomy. He thinks that all Catalans could possibly complain about dates back to the Franco period and before, and that today they should leave this behind, drop talk of independence and work out their differences with the rest of Spain. But the latter is precisely what they have tried for several decades, and with limited success. Spain’s 1978 constitution is an awkward compromise, born out of a transition from dictatorship. It stops well short of establishing a federal state and, despite Spain’s enormous cultural diversity, has many centralist elements. Catalans are a structural minority in that setting – and less protected than the Basques who achieved a more favourable position in and after the constitution. While it is true that they don’t face persecution or any kind of grave human rights violations, discrimination can also take more subtle forms and result in systematic disadvantages when it comes to appointments to public office, investment in infrastructure or the distribution of resources in general. And even achievements in linguistic rights are called into question when the Spanish government can declare – as it has recently done – that it intends to ‘hispanicise’ Catalan school children.

All this does not reach the threshold for remedial secession under international law. But is international law, state-centric and state-made as it is, a good guide for our normative approach here? Probably not. Read the rest of this entry…

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Filed under: EJIL Analysis, European Union, Self-Determination, States and Statehood
 

Would It Be Lawful For European (or other) States to Provide Arms to the Syrian Opposition?

Published on January 17, 2013        Author: 

A week ago (January 10), the United Kingdom’s Foreign Secretary, William Hague gave a speech in Parliament in which he appeared to suggest that European Union countries should consider providing arms to the opposition in Syria (see BBC reports and video here and here). From the lawyer’s perspective, one key question that arises is whether it would be lawful, under international law, for States to provide weapons to the Syrian opposition. In his speech William Hague stated that “we are determined that all our actions will uphold UK and international law, and support justice and accountability for the Syrian people themselves.” But would this be so were the UK to supply arms to the Syrian opposition? What arguments can be used to support the legality of the provision of arms and how strong are those arguments? In this post, I consider the possible legal arguments that may be made by European States. As I explain below, each of these arguments has considerable problems.

At present, European Union sanctions on Syria include a ban on transferring arms to that country. In his speech, Mr Hague noted that the EU sanctions regime on Syria includes an arms embargo and that in December the UK had argued that the sanctions regime should be reviewed after three months (i.e in March 2013) rather than after twelve months. He then went on to state that:

 “ . . . European countries now have the flexibility to consider taking additional steps to try to save lives if there is no progress in the near future. . . . [W]e must keep open options to help save lives in Syria and to assist opposition groups opposed to extremism if the violence continues. We should send a strong signal to Assad that all options are on the table. We will therefore seek to amend the EU sanctions so that the possibility of additional assistance is not closed off.”

The Illegality of Supporting Armed Opposition Groups

The starting point of analysis is that the provision of arms by one State to an armed opposition group fighting against another State is, in principle, a breach of the prohibition of the use of force set out in Art. 2(4) of the United Nations Charter, and also of the principle prohibiting intervention by States in the internal affairs of other States. Read the rest of this entry…

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Filed under: Syria, Use of Force
 

Conference at Oxford Brookes

Published on January 16, 2013        Author: 

Oxford Brookes Law School is hosting a day-long workshop on the protection of rights in Europe this coming Friday (18 January, 9am-5pm in Headington Hill Hall, Oxford OX3 0BP). The aim of this workshop is to bring together scholars, judges and policy makers to discuss the legal framework for the protection of fundamental rights in Europe. This event will reflect on the relationship between the Court of Justice of the EU (CJEU) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg. It will examine the current state of accession of the European Union to the European Convention on Human Rights (ECHR) and consider the legal implications of the accession for the protection of the fundamental rights of EU and non-EU citizens.

It will explore this theme from a number of different angles and as such it is divided into four main streams: employment rights, citizenship and migration, fundamental rights versus fundamental freedoms and access to justice. Speakers include:  Advocate General Jaaskinen of the  Court of Justice of the European Union, Kristi Raba of the Council of the European Union, Joerg Polakiewicz of the Human Rights Law and Policy Division, Council of Europe, Professor Weatherill of Oxford University, Professor Loenen of Leiden University and Judge Popović of the European Court of Human Rights. Further conference details available here.

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Filed under: Conference, EJIL Reports
 
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The Kadi case: Response by Juliane Kokott and Christoph Sobotta

Published on January 16, 2013        Author: 

We are grateful to EJIL that our article in the latest issue of the journal has been chosen for discussion in this forum. The commentaries by Yang and Tzanakopoulos help us to put our position into perspective and frame it more precisely.

 Tzanakopoulos develops the Solange argument for judicial control in multilevel systems in the way that implicitly underlies our understanding in the first part of our contribution. His argument is almost binary in its nature. Either the standards of judicial control on the other level are adequate or our level will control measures from the other level.

However, Yang provides a more nuanced image: Solange or not Solange – that is not the question. The conditions of a Solange rule are what is important. And we would add that also the consequences of the conditions are of interest. Read the rest of this entry…

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Filed under: EJIL Analysis, EJIL: Debate!, European Court of Justice, Human Rights, Security Council
 
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Kadi and the Solange Argument in International Law

Published on January 15, 2013        Author: 

Antonios Tzanakopoulos is University Lecturer in Public International Law at the University of Oxford and Fellow of St Anne’s College, Oxford.

It is a pleasure to have been invited to contribute to the discussion of the article by Juliane Kokott and Christoph Sobotta on balancing constitutional core values and international law against the background of the Kadi case. At the outset I must state that I find myself in broad agreement with what I understand to be the authors’ central argument: ie that the CJEU (or ECJ) employed a variant of the Solange argument, if implicitly, in its Kadi judgment of 2008. I have in fact also argued this in a paper I presented in Oslo in 2009, which appeared in print in January 2012 (here) and indeed on this blog (here and here). I would kindly ask readers (if any) to also read the latter blog posts, as the present comment builds on the premises there laid out.

I will proceed with the discussion of three major issues that arise from the authors’ discussion of Kadi as a balancing exercise between constitutional core values and international law. The first issue refers to the perceived ‘dualism’ of Kadi and consequently of any attempt to employ a Solange argument. The second issue deals with the content of the Solange argument, in particular with the rules it seeks to establish and / or safeguard. And the final issue deals with the justification of the Solange argument in (international) law and the ‘battle for the analogy’. Read the rest of this entry…

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Filed under: EJIL Analysis, EJIL: Debate!, European Court of Justice, Human Rights, Security Council
 
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Program of Advanced Studies on Human Rights and Humanitarian Law

Published on January 14, 2013        Author: 

The Academy on Human Rights and Humanitarian Law is pleased to announce the opening of the application period for the Program of Advanced Studies on Human Rights and Humanitarian Law that will be offered from May 28 to July 15 of 2013. This Program offers 19 courses in English and Spanish lectured by over 39 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 170 participants from more than 40 different countries and with different levels of professional experience.

The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission and Court on Human Rights, recognized members of NGOs and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance, ABA Credits for students currently studying in a U.S. law school and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. The application form for this program is available at http://www.wcl.american.edu/hracademy/app.cfm.

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Filed under: EJIL Reports
 

Comment on Kokott/Sobotta “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 14, 2013        Author: 

Nele Yang is a PhD candidate and research fellow at the Max Planck Institute for Comparative and International Law in Heidelberg.

The title of Kokott and Sobotta’s article (available free here) seems to suggest that this is another analysis of whether the 2008 Kadi decision succeeds in balancing core EU constitutional values and the effective implementation of UN anti-terrorist sanctions. Innovatively, however, the authors choose not to venture down this well-trodden path. Instead they ask what can be drawn from the Kadi judgment and the developments it has triggered in order to reduce conflict between the EU legal order and the UN Al-Qaida sanctions regime in general.

Solange – the Importance of Conditions

Kokott and Sobotta assert that the ECJ’s 2008 Kadi decision contains an approach similar to the German Federal Constitutional Court’s famous Solange. The question whether the 2008 Kadi judgment can be read as spelling out a Solange approach or at least leaving this approach open as one alternative for future action is less controversial than the article makes it out to be. Considering how much of the Kadi debate has been conducted around this issue, it is to be regretted that Kokott and Sobotta do not clarify that there is no “either/or” relationship between an approach à la Solange and a dualist approach. Moreover, Solange does not necessarily imply an attenuated form of dualism. To the contrary, depending on the conditions contained in the relative clause starting with “as long as”, the stance that it is this legal order which determines under which circumstances the other legal order will have any bearing on it might even be intensified. This is why we distinguish between Solange II and Solange I. Thus, “solange” in itself only expresses that interaction is made conditional. It does not say anything about the conditions, but the conditions are the crucial part. So the question is not so much whether a Solange approach can be drawn from the 2008 judgment but rather under which conditions the Court might in future cases practice deference.

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Filed under: EJIL Analysis, EJIL: Debate!, European Court of Justice, Human Rights, Security Council
 
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