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The Partition of India and Pakistan: Lessons on UN Membership in the Event of a Break-Up of Member

Published on August 21, 2017        Author: 

70 years ago today (21 August 1947) the United Nations Security Council adopted Resolution 29 recommending that the General Assembly admit Pakistan to membership of the United Nations. That resolution was adopted a few days after British India was partitioned, and the emergence on 15 August 1947 of the newly independent countries of India and Pakistan. Of the many issues that arose out of the decolonisation of India, one new legal issue was how to deal with membership of the emergent states in the recently created United Nations. The UN was faced for the first time with an issue, which has proved to be a recurring one in the history of the UN: how should the organization deal with the break-up of an existing member? There have since been many cases where a number of states have emerged on the territory of an existing member after a break-up of the member (the most recent cases being Montenegro’s separation from Serbia in 2006 and South Sudan’s separation from Sudan in 2011). In all of these cases, one of the key questions that arises is whether the legal personality of the existing state continues and, if so, whether it may simply retain its membership in the UN despite the break-up. Or alternatively, is the previous state to be taken as no longer existing with all the entities emerging on its territory to be regarded as new states? Where new states have emerged from a UN member should such new states be required to apply anew for UN membership? The principles that emerged from the partition of India, with respect to the membership of India and Pakistan, came to be relied upon in later situations, particularly in the 1990s upon the break up of the Soviet Union, and ultimately also in the case of the former Yugoslavia.

India’s membership of the UN is also interesting because it (meaning British India) was an original member of the United Nations and had previously been a member of the League of Nations, even though it did not become independent until 1947. It held that membership in the UN despite Articles 3 and 4 of the UN Charter stating that membership in the UN was open to “states”. British India, being a dependent territory, was not a state as a matter of international law before August 1947. However, pre-independence India was not the only entity that was an original member of the UN that was not a state. Read the rest of this entry…

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Filed under: EJIL Analysis, State Succession, States and Statehood, United Nations
 
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Announcements: New additions to the UN Audiovisual Library of International Law; CfP Humanitarianism and the Remaking of International Law; Workshop on Financing & the Right to Science in Technology Transfer; Workshop on The 1917 Russian Revolution and Its Impact on Law; Workshop on Transformative Constitutionalism in Latin America and International Economic Law

Published on August 20, 2017        Author: 

1. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Olivier Corten on “La légitime défense préventive : un oxymore?” and Professor Vaios Koutroulis on “The Beginning and End of Occupation”, “Le début et la fin de l’application du droit de l’occupation”.

2. Call for Papers: Conference on Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology. The language and logic of humanitarianism occupy an increasingly central place in international law. Humanitarian reason has shaped the ideology, practice, and technologies of international law over the past century. For some, this trend is clearly positive – international law is reimagined as humanity’s law. Yet critics have pointed to the dark side of these developments and of the humanitarian logic operating within international law. This conference, held at Melbourne Law School on 31 May – 1 June 2018, will bring together scholars to think critically about the ideology, institutions, practices, and technologies that condition modern humanitarianism and its relation to international law. Those proposing papers for presentation at the conference should submit a one page abstract and brief bio by email to Professor Anne Orford at laureate-intlaw {at} unimelb.edu(.)au by 1 September 2017.  For more information and a list of confirmed speakers, please see here.

3. Financing & the Right to Science in Technology Transfer in the Sustainable Development Goals Workshop. The Department of International Law, University of Groningen invites abstracts for the forthcoming Workshop “Financing & the Right to Science in Technology Transfer in the Sustainable Development Goals”. The main question of this Workshop is whether international law can/should be a vehicle for establishing and operationalising legal principles, rules and/or standards for mobilising, sharing/distributing and allocating adequate resources in the implementation of the SDGs. The Workshop will take place on 24 November 2017, at the Faculty of Law, University of Groningen and it is part of the 2017-2018 Workshop Series “International Law for the Sustainable Development Goals”.  The detailed Call for Papers is available here and the deadline to submit abstracts is on 15 September 2017. Read the rest of this entry…

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The Kosovo Specialist Chambers’ Rules of Procedure and Evidence

Published on August 17, 2017        Author: 

The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) are the latest addition to a multi-layered and broad spectrum of international institutions dedicated to the investigation and prosecution of international crimes. In March 2017, the Judges of the KSC adopted the Rules of Procedure and Evidence (RPE), which are now finally available on the Tribunal’s website. In the following, I will provide a first analysis of the RPE and evaluate them against existing procedural laws of International(ized) Criminal Tribunals (ICTs). It goes without saying that, in the face of the sheer number of rules (211), this analysis can only be cursory.

The biggest achievement of the Judges certainly is that they translated the institutional uniqueness of the KSC – an internationalized tribunal with a Constitutional Chamber (‘Specialist Chamber of the Constitutional Court’) and the European Union as the primary sponsor – into the rules. This especially becomes apparent through the incorporation of an interpretation rule (Rule 4) into the RPE, which refers – inter alia – to ‘the framework as set out in Article 3 [KSC-Law]’. This Article 3 (its length makes it impractical to reproduce it here) is not only a modern version of Article 21 of the ICC-Statute. It also determines that the KSC shall adjudicate and function in accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Constitution of Kosovo. This is remarkable in many regards: the preference to refer to the ECHR rather than ‘internationally recognized human rights’ (Article 21(3) ICC-Statute) has the potential of strengthening the rights of the defendant. The vagueness of the term ‘internationally recognized human rights’ has led to the assumption that it denotes something less than universal acceptance. The European human rights jurisprudence, by contrast, is one of the most developed and most discussed in secondary source material (Young, ICLQ 60 (2011), 204). Moreover, through its Article 22, the Constitution of Kosovo gives the ECHR constitutional value. Of course, one could think that this does not make any practical difference, since the ECHR is mentioned as a source of the KSC anyway. However, recall that Kosovo is not a party to the ECHR and therefore not internationally liable for its implementation. The reference to the ECHR in Kosovo’s Constitution makes these human rights justiciable because both the accused and the victim are entitled to make referrals to the Constitutional Chamber in relation to alleged violations by the KSC of their human rights guaranteed by the Constitution (Article 113(7) Kosovo Constitution). Thus, in questions of the KSC’s activity and subject-matter jurisdiction, it is the Constitutional Chamber – not an appellate body – that serves as the final authority for the interpretation of the Constitution (Article 49 KSC-Law). This turns the rights enshrined in the ECHR into basic rights and contributes to a constitutionalization.

Of course, the strengthened judicial review at the KSC through the establishment of a Constitutional Chamber comes at a price, and it does not take much to predict a governance problem. More concretely, as praiseworthy as a constitutionalized ECHR may be in theory, in practice it will not make it any easier for the Judges to face the daily task of running an ICT. Take, for instance, the first Constitutional Chamber judgment about the constitutionality of the KSC RPE, Rule 19 in particular: in the version that was first referred to the Constitutional Chamber on 27 March 2017, Rule 19 contained a paragraph 3 where a hearing could continue for no more than five working days in the presence of just two instead of three Judges, in case one Judge was absent due to circumstances such as illness. Such a rule has great practical importance and is modelled after Rule 16(A) of the Special Court for Sierra Leone (SCSL) RPE and Rule 15bis ICTY RPE. Nevertheless, the Constitutional Chamber declared Rule 19(3) KSC RPE unconstitutional, because Article 25(1) KSC-Law prescribes that the Trial Panels, Court of Appeal Panels and Supreme Court Panels are comprised of ‘three’ Judges, and the KSC-Law is silent on whether hearings may be conducted before a ‘Panel’ of two Judges (Specialist Chamber of the Constitutional Court, para. 39). Read the rest of this entry…

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Filed under: EJIL Analysis, European Convention on Human Rights, International Criminal Law, International Tribunals
 
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Reopening Proceedings for Reparations and Abuse of Process at the International Court of Justice

Published on August 16, 2017        Author: 

On 28 July 2017, Nicaragua made the rather surprising announcement that it would revive its claim for US$17 billion in compensation against the United States. To recall, in its 1986 Merits Judgment in Nicaragua v. United States, the International Court of Justice declared that the United States was “under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua” arising from “breaches of obligations under customary international law” [Dispositif, para. 292(13)] and for “breaches of the Treaty of Friendship, Commerce and Navigation between the parties…on 21 January 1956” [Dispositif, para. 292 (14)]. The Court further decided that “the form and amount of reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case”. [Dispositif, para. 292(15)]. After the Court issued an Order fixing time limits for the filing of pleadings on the matter and form of reparation, Nicaragua thereafter informed the Court in 1991 that it did not wish to continue the proceedings. One would have thought that Nicaragua’s discontinuance of the proceedings somehow ensured the finality of the Court’s Judgment on the Merits and left the matter of reparations to political negotiations between the parties. However, as Nicaragua’s recently stated position appears to suggest, there is no time limit for reviving a judicial determination of the form and amount of reparations claims, even if it does not appear that Nicaragua took any steps to pursue its compensation claim against the United States for over thirty years.  The Court’s recent practice likewise appears to lend support to the view that reparations claims can feasibly reopen ICJ proceedings at any point in time, if the Court does not itself fix a time limit to determine when parties’ negotiations on reparations have failed. In its Order of 1 July 2015, the Court in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court observed that since the parties therein had been unable to reach a political settlement since its Judgment of 19 December 2005, it would reopen proceedings as requested by the Democratic Republic of Congo.

Read the rest of this entry…

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Filed under: EJIL Analysis, International Court of Justice, International Tribunals
 

The ICC’s immunity debate – the need for finality

Published on August 11, 2017        Author:  and

In a judgment given last month, on 6 July, the Pre-Trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunities for heads of state who are alleged to have committed international crimes. It did so in a case involving South Africa’s failure to arrest President Bashir of Sudan when he attended the AU heads of summit meeting in Johannesburg in June 2015.

While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan. The PTC found that states parties to the Rome Statute, such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory.

We are not here debating the merits or otherwise of the PTC decision. It is enough to stress that the judgment comes at a fraught political time for the ICC, and its relationship with African states and the AU. The impetus for this joint piece arises from the legitimate and expressed concerns of African states parties (like South Africa) regarding their obligations to cooperate with the ICC in surrendering heads of states of non-state parties (like Sudan) to the Court in the light of, inter alia, the rules of customary international law on immunities.

The technical legal issues relate to the relationship between Articles 27 and 98 of the Rome Statute, which has been raised by a number of African states, particularly South Africa in relation to the Bashir case, as well as the African Union (AU). The subject has been a central concern of the AU as well as ICC member-states seeking measures to reform and improve the ICC. The concern, in a nutshell, is how to balance the obligations owed to the ICC to arrest heads of state, with the customary international law immunities that are ordinarily accorded to such officials. African states have felt the brunt of what have been described as “competing obligations” – being pulled in one direction to assist the ICC, and in the other direction by customary international law duty to respect official immunities. In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the Rome Statute duty to arrest Al Bashir and the duty under customary international law to respect his immunities.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to make submissions to the PTC explaining its reasons for failing to arrest Bashir. The Prosecutor of the ICC filed submissions in response. And the PTC also admitted the Southern Africa Litigation Centre (the NGO that had brought cases in South Africa’s courts successfully challenging the government’s failure to arrest Bashir) to make submissions [all available here].

We were on opposing sides as lawyers in that dispute (with Tladi acting for the government, and du Plessis acting as counsel for SALC). We nevertheless now write jointly (and in our personal capacities) because of a shared belief that there remains a need for the dispute to be resolved finally through judicial means.  Read the rest of this entry…

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Filed under: EJIL Analysis, International Criminal Court, State Immunity
 
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Charlie Gard: An Ethical Analysis of a Legal non-Problem

Published on August 9, 2017        Author: 

For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday. Read the rest of this entry…

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Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Right to Life
 

Itamar Mann Concludes the Discussion on “Humanity at Sea”

Published on August 7, 2017        Author: 

This symposium brought together four of my favorite scholars to engage with Humanity at Sea, and I couldn’t be more thankful. I learned a great deal from each of the reviews and entirely agree with Jaya Ramji-Nogales when she writes, in an understatement, that they leave me with “ongoing questions to address.” I will only begin to lift the burden here.

The Place of Human Rights  

If human rights are to be conceptualized around a dyadic encounter, asks Chantal Thomas, must this encounter be a physical one? “Perhaps the horrific reports of Mediterranean crossings on television or in other media might stage a form of virtual encounter […] that serves as the catalyst for generating human rights.” In the book, I try to provide a starting point for approaching such questions.

Chapter 5 examines the use of surveillance systems and other technologies both by states engaged in “migration management”– and by migrants, refugees, and smugglers. Using such technologies, relevant actors re-construct and manipulate the physical encounter at sea (which is discussed in previous chapters). They are thus able to partake in the transformation of human rights jurisdiction. Since I completed the book, the use of these technologies has developed quickly and there are many more examples to discuss: Read the rest of this entry…

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Filed under: EJIL Book Discussion, Human Rights, Law of the Sea, Migration, Study of International Law, Theory of International Law
 

Announcements: CfP Populism, Nationalism and Human Rights; CfP Irish Yearbook of International Law

Published on August 6, 2017        Author: 

1. Call for Papers: Populism, Nationalism and Human Rights. Conference at Maastricht University, the Netherlands (11 and 12 January 2018). Paper proposals can be submitted by email to humanrights {at} maastrichtuniversity(.)nl. The proposal should be no more than 250 words in length and accompanied by a current CV. The deadline for paper proposals is 1 September 2017. More information can be found here.

2. Call for Papers: Irish Yearbook of International Law. The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes articles on all areas of international law. The Yearbook is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 – 12,000 words, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words. Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both  siobhan.mullally {at} nuigalway(.)ie and f.delondras {at} bham.ac(.)uk by 31 October 2017. Enquiries can be directed to either or both Editors. If you wish to review a title in the Yearbook’s book review section, please contact the book reviews editor Dr. Dug Cubie, d.cubie {at} ucc(.)ie (University College Cork.)

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Tarnished Hospitality: Reflections on Itamar Mann’s ‘Humanity at Sea’

Published on August 4, 2017        Author: 

What men, what monsters, what inhuman race,

What laws, what barbarous customs of the place,

Shut up a desert shore to drowning men,

And drive us to the cruel seas again.

The above verse, recounting the plea of the Trojan refugee Aeneas to queen Dido when washed ashore in present-day Libya, repeatedly comes to mind when reading Itamar Mann’s new book, Humanity at Sea. Like Mann’s volume, this part of Vergil’s Aeneid (Dryden’s translation, I, 760-63) zooms in on the basic norms governing the encounter between the powerful and the dispossessed. An encounter that, if with a somewhat reversal of cast, is played out thousands and thousands of times these years as refugees and migrants try to cross the very same waters.

Mann’s inductive approach is not shy of ambition, however. A proper understanding of the encounter between the ‘universal boat person’ and the naval authorities, we are told, holds the keys to an entire theory of human rights. His core argument, that at the heart of human right lies a dyadic encounter quite distinct from both the constitutional and intergovernmental approaches forwarded by positive international law, is both simple and compelling. Read the rest of this entry…

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Filed under: EJIL Book Discussion, Human Rights, Migration, Study of International Law, Theory of International Law
 

Review of Itamar Mann’s ‘Humanity at Sea’

Published on August 4, 2017        Author: 

Itamar Mann’s Humanity at Sea is bold, engaging, and wide-ranging. Perhaps most importantly, it is not afraid to confront standard clichés about the conceptual underpinnings and normative architecture of international refugee law and international human rights law. In addition to specifically legal sources, it marshals a wide range of materials from a number of disciplines, particularly moral and political philosophy, in order to develop an original argument about the centrality of the refugee “encounter”—the physical and symbolic meeting between those seeking protection and those empowered to accept or reject them—to the nature of human rights generally.

On Mann’s account, human rights are non-positive norms of universal value or implication; they cannot be reduced to the rights and duties enumerated in conventional human rights instruments, whether domestic or international. Far from being ineffective or of merely marginal significance, they are one of the two “foundations” of international law, the other being sovereignty. Read the rest of this entry…

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Filed under: EJIL Analysis, EJIL Book Discussion, Human Rights, Law of the Sea, Migration, Study of International Law