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

Published on November 19, 2018        Author: 
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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…

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Filed under: EJIL Analysis, Jurisdiction, Space Law, Treaty Law, United Nations
 
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Announcements: CfP CCSI Yearbook on International Investment Law and Policy; CfP ASIL IOIG Workshop; CfP ILA-ASIL Asia-Pacific Research Forum; CfP It Takes Two to Tango

Published on November 18, 2018        Author: 
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1. Call for Papers: CCSI Yearbook on International Investment Law and Policy. The Columbia Center on Sustainable Investment (CCSI) is pleased to announce a call for papers for the edition of the Yearbook on International Investment Law and Policy covering 2018. The Yearbook is published by Oxford University Press (OUP) in hardcopy, as an ebook, and as part of OUP’s Investment Claims online service. The Yearbook monitors current developments in international investment law and policy. Beginning with the 2017 edition, Part One will include short pieces providing succinct overviews of recent developments and trends in international investment treaties and treaty policy; investor-state dispute settlement; institutional developments; and developments relevant to particular regions or countries. Part Two continues to include detailed analyses or short think pieces on central thematic issues in the contemporary discussions on international investment law and policy. All papers must be original texts and are subject to double-blind peer review. Original contributions to be considered for publication in the Yearbook are accepted on a rolling basis until 1 February 2019; please send submissions to Lisa Sachs (lsachs1 {at} law.columbia(.)edu). Further information can be found on CCSI’s website.
 
2. Call for Papers: ASIL IOIG Workshop. The International Organizations Interest Group (IOIG) of the American Society of International Law (ASIL) welcomes abstract submissions for its biennial work-in-progress workshop, to be held on Friday 15 March 2019 at Seton Hall School of Law in Newark, NJ. Please submit your abstract of an unpublished paper in the field of international organizations by 1 December 2018 at ioig {at} asil(.)org. 
 
3. Call for Papers: 2019 ILA-ASIL Asia-Pacific Research Forum, Taipei . The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on 17 – 18 May 2019 at Howard Civil Service International House in Taipei, Taiwan, ROC. The theme of the Research Forum is “International Law and Emerging Powers: New Policy Challenges in the Asia-Pacific.” The Research Forum will feature two keynote speakers: Dr Christopher Ward SC, President of the ILA and Justice Chang-fa Lo of the ROC Constitutional Court. Paper proposals must be submitted to ila {at} nccu.edu(.)tw. Selected papers will be published in the Chinese (Taiwan) Yearbook of International Law and Affairs. The call for paper is available at the Research Forum website. Members of the organizing committee include Professors Chun-i Chen, Weixia Gu, Pasha Hsieh, Nigel Li, Torsten Stein, Lisa Toohey and Pei-Lun Tsai. The deadline for submissions is 10 December 2018. 

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EJIL Call for Papers: International Law and Democracy Revisited – The EJIL 30th Anniversary Symposium

Published on November 17, 2018        Author: 
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EJIL was founded in 1989, coinciding with the fall of the Berlin Wall and the attendant excitement encapsulated by that well-known optimistic/hubristic End of History phraseology, with predictions of liberal democracy to become regnant in the world and a New International Legal Order to replace the old First World-Second World-Third World distinctions.

Thirty years later the state of democracy, whether liberal or social or any other variant, seems to be far from sanguine.

Here is but a partial list of the challenges to democracy in the contemporary world:

  • The advent of so-called ‘illiberal democracies’
  • The crisis and breakdown of trust within established democracies
  • The reality or otherwise of states with ‘formal democracy’ often reduced to little more than elections, more or less free
  • The accountability and rule of law concerns, famously termed GAL concerns, which transnational governance regimes raise as indispensable features of democracy
  • The persistent ‘democracy deficit’ or ‘political deficit’ of the European Union and similar Organizations
  • The emergence of the global ‘data economy’ with mega platforms calling into question basic assumptions about territory and jurisdiction and calling into question the ability of democratic regimes to reign in such platforms increasingly questioned
  • The impact of both financial markets and international monetary bodies on the internal margin of manoeuvre and democratic choices of economic management
  • Democracy and global inequality: The relationship between counter-democratic ideologies, legal reforms and political processes at the domestic and global levels and social and economic processes such as the shrinking middle class and the lasting ramifications of the 2008 economic crisis.

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Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Published on November 16, 2018        Author: 
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On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.

Greenhouse Gas Emissions and Human Rights

The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).

According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…

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Filed under: European Convention on Human Rights, Human Rights, Right to Life, Right To Privacy/Family Life
 
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A War Crimes Trial That Needs More Attention

Published on November 15, 2018        Author: 
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Introduction

There is an ongoing landmark domestic trial for international crimes that is steadily progressing at this very moment in relative obscurity. The case is about one of the worst single-event crimes that has occurred since the Second World War and was matched in its methods and gravity only by the likes of the Nyarubuye, Gikondo, and Srebrenica Massacres of 1994 and 1995. In 3 days, 1000 people from several neighboring villages were rounded-up, imprisoned, tortured, raped and killed. More than 500 of them were children. The crime was committed during an internal armed conflict that lasted 12 years during the final decade of the Cold War. The crime was then denied, forgotten and eventually literally exhumated by Argentinian forensic experts in 1992. The crime took place between 11 and 13 December 1981 in a cluster of small villages in North-East El Salvador. The crime is remembered as the El Mozote Massacre.

It will be 37 years in December since this massacre took place. So far, nobody has been held criminally responsible for it, despite the fact that the details of the incident were well documented in the 1993 Report of the UN Truth Commission for El Salvador. This is largely because of the General Amnesty Law which was passed in 1993, shortly after the signing of the Chapultepec Peace Accord by which the Salvadoran civil war ended. However, in 2012, the Inter-American Court of Human Rights passed the Judgment in the Case of the Massacres of El Mozote and Nearby Places v. El Salvador in which it declared the Amnesty Law incompatible with the Inter-American Convention of Human Rights and with the peace accord itself.

It took some 4 years for the Salvadoran Constitutional Chamber of the Supreme Court to declare the Amnesty Law unconstitutional. Shortly after the law was derogated, the investigation into the El Mozote Massacre continued, and in March 2017 charges against 18 high-ranking military officers were brought before the criminal court of first instance in San Francisco Gotera, a small municipality in Morazán department. The charges were not brought by the Salvadoran Attorney General (Fiscalia), but by two NGOs – Fundacion Cristosal and Tutela Legal Maria Julia. The Attorney General initially claimed that the case was res judicata and that, therefore, it should be rejected. The trial judge, Guzman Urquilla, disagreed and let the proceedings continue. Read the rest of this entry…

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Filed under: Amnesty, International Criminal Law, International Tribunals
 
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The Situation of the Rohingya: Is there a role for the International Court of Justice?

Published on November 14, 2018        Author: 
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In April 2017, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to investigate alleged human rights abuses by military and security forces. The Fact-Finding Mission issued an initial summary reportin August 2018, followed by a 444-page report of detailed findingsin September.

Among other things, the Fact-Finding Mission found that after an armed group called the Arakan Rohingya Salvation Army launched a series of small-scale attacks against government military outposts on 25 August 2017, a government campaign aimed at Rohingya communities in Rakhine State resulted in at least 10,000 deaths and caused 725,000 Rohingya to flee, mainly to neighbouring Bangladesh. The Myanmar authorities termed their actions “clearance operations” meant to eliminate a terrorist threat. The Fact-Finding Mission described a campaign of indiscriminate killing and maiming, rampant sexual violence, and widespread destruction of Rohingya villages—a “human rights catastrophe”, but one long in the making because of a history of state-sanctioned discrimination against the Rohingya, a Muslim minority in a predominantly Buddhist country.

The Fact-Finding Mission (which Myanmar refused to admit into its territory) concluded that the actions of Myanmar’s forces constituted crimes against humanity and war crimes. It also found sufficient evidence to warrant the investigation and prosecution of senior officials for the crime of genocide. Among other recommendations, the Fact-Finding Mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) (Myanmar is not a party to the Rome Statute) or to establish an ad hoc international criminal tribunal. (After the Fact-Finding Mission issued its August report, a Pre-Trial Chamber of the ICC determinedthat the ICC has jurisdiction over the alleged deportation of Rohingya individuals from Myanmar to Bangladesh, and possibly over additional other crimes; ICC prosecutor Fatou Bensouda has since announceda preliminary examination into the situation.) The Fact-Finding Mission also recommended targeted sanctions against government officials and an arms embargo. The Chair of the Fact-Finding Mission, Marzuki Darusman, addressed the Security Council last month (over the objections of China and Russia) to reiterate these conclusions. In the meantime, the UN Human Rights Council responded by establishing a mechanismto collect and preserve evidence of international law violations in Myanmar (discussed here).

The emphasis of the Fact-Finding Mission and the UN Human Rights Council on individual criminal accountability is unsurprising. Many other fact-finding missions and commissions of inquiry that have investigated large-scale human rights violations have been similarly focused—a reflection of the extent to which international criminal law has become the central or even dominant narrative of the international response to so many crises. Indeed, advocacy groups have long campaigned for an ICC-focused response to the Rohingya crisis, alongside the urgent need to provide humanitarian assistance to the thousands of Rohingya refugees now living in difficult conditions in camps across the border in Bangladesh. (A dealnegotiated by UNHCR and UNDP with Myanmar in May 2018 to facilitate the repatriation of the Rohingya has been widely criticizedand remains unimplemented.)

The increased focus on Myanmar in 2018 is to be welcomed. UN officials and some governments have already characterized the conduct of the Myanmar authorities as acts of genocide (see here, here, here, and here), and the reputation and credibility of Myanmar’s de facto leader, the Nobel peace laureate Aung Sung Suu Kyi, has seen a rapid and precipitous decline (see here, here, and here). Yet amidst all of these developments, the almost singular focus on an international criminal justice response to the plight of the Rohingya is striking. The idea of seeking legal accountability at the level of State responsibility has gone largely unmentioned, a further example of what Laurel Fletcher has called the “effacement of state accountability for international crimes”. In that vein, the remainder of this post will consider the prospects for a case against Myanmar at the International Court of Justice (ICJ). Read the rest of this entry…

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Filed under: Genocide, Human Rights, International Court of Justice, International Criminal Law
 

The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad

Published on November 13, 2018        Author:  and
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On 18 October 2018, the Swedish Government authorized the Swedish Prosecution Authority to proceed to prosecution in a case regarding activities of two corporate directors within Swedish oil company Lundin Oil, and later within Lundin Petroleum, in Sudan (now South Sudan) between 1998 and 2003. The company’s chief executive and chairman could be charged with aiding and abetting gross crimes against international law in accordance with Chapter 22, Section 6 of the Swedish Penal Code. Charges of such kind carry a sentence of up to ten years or life imprisonment. The case has the potential of furthering accountability of corporate actors for their involvement in international crimes abroad.

Lundin’s alleged involvement in international crimes in South Sudan

Sudan was ravaged by a non-international armed conflict which lasted from 1983 until 2005, between the Government of Sudan and the Sudanese People’s Liberation Army (SPLA) – as well as a variety of other armed groups. Meanwhile, beginning with the signing of contracts in 1997, Lundin formed a consortium which carried out oil exploration and production in an oil concession area located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State called Block 5A in the southern part of the country. According to a report by the European Commission on Oil in Sudan (ECOS), the oil exploration brought exacerbated conditions while setting off a battle for control of the disputed region, leading to thousands of deaths and the forced displacement of local populations – with the Nuer people being the most affected. Additionally, reported crimes against civilians by the Sudanese army as well as associated militias of both parties, include indiscriminate attacks, unlawful killing, rape, enslavement, torture, pillage and the recruitment of child soldiers. The consortium’s interaction with local counterparts has come under criminal investigation after the ECOS report was submitted to Swedish prosecutors in 2010. The long time span of the investigation is at least in part due to on-going conflict in the region in 2013, when the International Office of the Prosecutor had scheduled its visit to South Sudan. Furthermore, the case came with some political connotations since Carl Bildt, former Minister of Foreign Affairs of Sweden, had served as a member of the Board of Directors of Lundin from 2000 to 2006.

In the United States, a case comprised of a similar set of facts was brought by the Presbyterian Church of Sudan against the Republic of Sudan and Talisman Energy Inc., a Canadian oil company, which commenced its activities in the area one year after Lundin. The Court of Appeals for the Second Circuit held in a judgment of 2 October 2009 that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences”. Under the Alien Tort Claims Act (ATCA) the plaintiffs needed to show that “Talisman acted with the – purpose – (one could argue that such mens rea standard had been set unreasonably high) to advance the Government’s human rights abuses”. On 15 April 2010, the plaintiffs petitioned for a writ of certiorari to the Supreme Court, supported by an amicus curiae submitted by Earth Rights International on 20 May 2010, asking to revert the decision of the Second Circuit. On October 2010 the Supreme Court declined to grant certiorari and respectively to hear the appeal in this case. In contrast to the rather broad universal and extraterritorial jurisdiction provided for in the Swedish Penal Code, the Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co. remarkably restricted the application of the ACTA in cases involving allegations of abuse – outside – the United States by finding that presumptively it does not apply extraterritorially. Read the rest of this entry…

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Filed under: Alien Tort Statute, EJIL Analysis, International Criminal Law, Universal Jurisdiction
 
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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
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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…

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Filed under: International Criminal Court, International Criminal Law, State Immunity, Treaty Law
 
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Dulce et Decorum Est

Published on November 11, 2018        Author: 
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Wilfred Owen (18 March 1893 – 4 November 1918)
 
Bent double, like old beggars under sacks,
Knock-kneed, coughing like hags, we cursed through sludge,
Till on the haunting flares we turned our backs,
And towards our distant rest began to trudge.
Men marched asleep. Many had lost their boots,
But limped on, blood-shod. All went lame; all blind;
Drunk with fatigue; deaf even to the hoots
Of gas-shells dropping softly behind.
 
Gas! GAS! Quick, boys!—An ecstasy of fumbling
Fitting the clumsy helmets just in time,
But someone still was yelling out and stumbling
And flound’ring like a man in fire or lime.—
Dim through the misty panes and thick green light,
As under a green sea, I saw him drowning.
 
In all my dreams before my helpless sight,
He plunges at me, guttering, choking, drowning.
 
If in some smothering dreams, you too could pace
Behind the wagon that we flung him in,
And watch the white eyes writhing in his face,
His hanging face, like a devil’s sick of sin;
If you could hear, at every jolt, the blood
Come gargling from the froth-corrupted lungs,
Obscene as cancer, bitter as the cud
Of vile, incurable sores on innocent tongues,—
My friend, you would not tell with such high zest
To children ardent for some desperate glory,
The old Lie: Dulce et decorum est
Pro patria mori
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Filed under: Armed Conflict, EJIL Analysis
 

Announcements: CfP The Legacy of the League of Nations Conference

Published on November 11, 2018        Author: 
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Call for Papers: The Legacy of the League of Nations Conference. We invite proposals of early career researchers for papers to the conference on ‘The Legacy of the League of Nations’ to be held at Leicester Law School on 31 January 2019.  The aim of the conference is to critically assess the legacy of the League of Nations and the role of its successor, the United Nations, as a driving force for the development of international law. Deadline for submissions is 30 November 2018. Abstracts of 500 words should be sent via email to  Dr Rossana Deplano (rossana.deplano {at} le.ac(.)uk). Abstracts must include the institutional affiliation of the author. For more information, please check our website.

 

 

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