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A Sermon from the Bench: Some Thoughts on the ECtHR Judgment in Bayev and Others v Russia

Published on June 27, 2017        Author: 

On 20 June 2017, the ECtHR rendered a judgment in the Bayev and Others v Russia. The judgment brought some much needed good news for LGBT rights. Against the backdrop of persecution of gay men in Chechnya and the steady deterioration of the position of LGBT people in Russia generally, the ECtHR showed its activist colours in ruling that Russia’s so-called ‘gay propaganda’ law violates human rights. The authors enthusiastically welcome and applaud the outcome. That being said, the Bayev judgment at times seems to leave the law ‘behind’ and strays from judicial decision to sermon, in a way that may ultimately undermine the efforts of the Court to move protections forward. Of note in this regard is the wording at times employed by the Court, and its understanding of the boundaries of its competence.

The Bayev case is the result of a challenge, brought by three gay activists, against what is often referred to as Russia’s ‘gay propaganda’ law. Read the rest of this entry…

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The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction?

Published on June 26, 2017        Author: 

The states parties to the Statute of the International Criminal Court have been meeting in New York recently to begin discussions that it is hoped will lead to a decision at this December’s Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression. These discussions are taking place seven years after the ICC states parties, meeting in Kampala, Uganda, adopted a series of amendments to the ICC Statute dealing with the crime of aggression. Those amendments remedied the failure to agree in 1998 in Rome on the definition of the crime of aggression and the conditions under which the Court can exercise jurisdiction over aggression. However in Kampala, states parties decided that the Court’s exercise of jurisdiction over aggression would require 30 ratifications or acceptances [(Arts. 15 bis (2); Arts. 15ter (2), ICC Statute], and could not happen prior to the taking of a decision by the states parties to activate that jurisdiction, with such decision not to be taken before 1 January 2017 [(Arts. 15bis (3); Arts. 15ter (3), ICC Statute]. In Kampala states parties “Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible” [Resolution RC/Res. 6]. States parties now face the moment of decision.

It was a privilege to be invited to a meeting of states parties held on June 2, at the UN Headquarters in NY, to present my views on what has turned out to be the most contentious question in the current discussions about aggression: who will be subject to the ICC’s jurisdiction with respect to the crime of aggression? It should be recalled that states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression under Art. 15bis (4) of the amended ICC Statute by simply lodging a declaration with the Registrar of the Court. However, some states that have not yet ratified the amendments are of the view they should not be required to opt out in order for their nationals to be exempt from ICC jurisdiction over aggression. Thus, the most important question on which there are different views among state parties is this:

Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter propio motu?

In summary, my view on that question, which I will set out below, is that the Court will not have jurisdiction in such a situation. Read the rest of this entry…

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Announcements: University of Oxford Departmental Lecturership in Law; CfA Junior Faculty Form for International Law; MILC Workshop on Democratic Governance; New additions to the UN Audiovisual Library of International Law; CfA Dialogues on International Law; BIICL Vacancy – Research Fellow on International Law of Territorial Disputes; CfP Utrecht Journal of International and European Law

Published on June 25, 2017        Author: 

1. The Faculty of Law of the University of Oxford invites applications for a fixed-term Departmental Lecturership in Law, from 1 October 2017 for one year. The postholder will be required to pursue internationally leading research in Public International Law; to teach and supervise undergraduate and graduate students for the Faculty and St Peter’s College; to provide administrative and pastoral support; and to examine. Applicants must have a proven record of high quality research and publication in Public International Law commensurate with their career experience; relevant teaching experience; a doctorate in Public International Law, or at least have submitted a completed doctoral dissertation for examination, or have attained a comparable level through their publications; demonstrate the capacity to pursue an independent scholarly and research agenda; and have the ability and willingness to undertake pastoral responsibilities associated with undergraduate and graduate teaching, and administrative duties as required. To apply for this role and to download the further details see here (Vacancy ID: 129045). Applications, written work and references must be submitted before noon on Friday 30 June 2017. Interviews will be held in Oxford in early July 2017.

2. Call for Applications: Seventh Annual Junior Faculty Form for International Law – University of Melbourne, May 2018. Earlier this week, Anne Orford (Law – Melbourne), J.H.H. Weiler (Law – NYU) and Dino Kritsiotis (Law – Nottingham) launched the annual call for applications for the Seventh Annual Junior Faculty Forum for International Law, which will be held at the University of Melbourne on May 28, 29 and 30, 2018. The deadline for applications is 15 December 2017, and further details of the application process can be found here.

3. The Manchester International Law Centre (MILC) Workshop on Democratic Governance. MILC is organizing a workshop on 3 November 2017 dedicated to the question of democratic governance with a view to revisiting the state of the practice in international law twenty-five years after this narrative attracted attention in international legal scholarship following the publication of Tom Franck’s seminal article. The workshop aims to foster debate about current problems surrounding the theory of democratic governance, and will take a critical look at international legal discourses and practice pertaining to democratic governance, including the practice of the European Union. We invite contributions which adopt new theoretical perspectives on the topic. Those employing inter-disciplinary methods and/or drawing on contemporary developments are especially welcome. Early career researchers are encouraged to apply. Abstracts of no more than 1000 words should be submitted by email to milc {at} manchester.ac(.)uk by 15th August 2017. Confirmed keynote speakers include Steven Wheatley (University of Lancaster), Russell Buchan (University of Sheffield), and the workshop will conclude with a presentation by Brad Roth (Wayne State University). The organisers anticipate that selected papers will be published in a volume of the newly established Melland Schill Guidebooks on International Law. You can find the Call for Papers and register to attend the event on Eventbrite. Read the rest of this entry…

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ICJ Advisory Opinion Request on the Chagos Islands

Published on June 24, 2017        Author: 

Yesterday the UN General Assembly voted, by 94 to 15 with 65 states abstaining, to issue a request for an advisory opinion from the International Court of Justice on the Chagos Islands. Readers will be familiar with the many legal disputes that have arisen from this leftover UK colonial possession in the Indian Ocean, ranging from the human tragedy of the Chagossians expelled en masse from the islands to make room for what is now a US military base of enormous size and importance, to the role that the Diego Garcia base played in the war on terror, to the applicability of human rights law to these issues, the designation of real or pretextual maritime protection areas, and the actual sovereignty dispute with Mauritius. Here’s a useful news item from the Guardian, and here is GA resolution itself, A/RES/71/292.  This is the operative part, i.e. the request that the Court will have to address:

(a)     “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;

(b)     “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.

The precise drafting of these questions can be enormously consequential, as shown most recently and most clearly with the Kosovo advisory opinion – I would refer interested readers in that regard to the volume edited by Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion (OUP, 2015), particularly chapters 3, 6 and 7 which deal with various aspects of the ‘question question.’ At first glance, the drafting of the Chagos request is not only interesting, but also quite intelligent, especially regarding the (a) part.

Why? Well, one almost ritualistic aspect of these advisory opinions are the objections made to the jurisdiction of the Court and the propriety of its exercise by states who opposed the issuance of the AO request in the first place. These objections almost never work, but the good fight is nonetheless always fought. And there are cases, like the Kosovo one, in which a particular objection (there regarding the relationship between the UNSC and the UNGA) could find significantly more purchase than could otherwise be expected. In the Chagos case in particular, one could expect the UK to make the objection that the AO request is trying to circumvent the consent requirement for contentious ICJ jurisdiction, and is in effect litigating a bilateral dispute (see e.g. the Wall AO, para. 43-50). And in fact there clearly is a set of bilateral disputes on Chagos between Mauritius and the UK.

Note, however, the clever drafting of part (a) of the request: it doesn’t directly speak of whether Mauritius has sovereignty over the Islands, but asks whether the process of decolonization of Mauritius was lawfully completed because of the separation of the Chagos Islands from its territory. It also makes links to numerous GA resolutions, in order to reinforce the view that this is a multilateral issue, raising broader questions of principle which the GA has been dealing with for decades.

When it comes to part (b) of the request, what’s particularly notable is that it doesn’t simply ask what the consequences would be if the Court found that the UK acted unlawfully in part (a). Rather, the consequences are those arising from the UK’s continued administration of the Chagos Islands. This would allow the Court to deal with various questions that not directly related to sovereignty or any faults with the decolonization process, like the plight of the Chagossians. On the other hand, the drafting of part (b) is also such that it could allow the Court to ‘properly interpret’ it in such a way as to avoid some of the more controversial issues, as it in fact did in the Kosovo AO. We shall, of course, have to wait and see what happens – but watch this space.

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President Erdogan versus Jan Böhmermann: Do Bad Poems Make Bad Law? – Reforming the Defamation of Foreign Heads of States under German Criminal Law

Published on June 23, 2017        Author:  and

Note: Revised and translated version of a statement made before the Legal Committee of the German Bundestag at an expert hearing on 17 May 2017, further elaborating on questions that were raised by Veronika Bílková in her EJIL:Talk! post “Thouh shalt not Insult the (Foreign) Head of State?”, dated 28 April 2016 and commenting on subsequent developments.

1. Prologue

In 2016, after the Turkish government had requested the deletion of a satirical song about Turkish President Erdogan, aired on a German TV show, the Turkish Head of State became the subject of another, rather vulgar, satirical poem fittingly titled “Schmähkritik” (“defamatory critique”), recited by the German comedian Jan Böhmermann on his TV show in March, 2016. This in turn led to the initiation of a criminal investigation against the said German comedian, instigated both by the Turkish government, as well as by Turkish President Erdogan personally. Thereafter, President Erdogan also pressed civil charges against Böhmermann before German courts. As far as the criminal proceedings initiated by the Turkish government were concerned, a violation of Section 103 Criminal Code was claimed which currently still provides as follows:

Section 103 German Criminal Code
Defamation of organs and representatives of foreign states

(1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Section 104a German Criminal Code further provides that before any such criminal proceedings under Section 103 German Criminal Code may be initiated, the German government has to formally authorize such proceedings: Read the rest of this entry…

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Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 

On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us. Read the rest of this entry…

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Protecting the Environment at the World Trade Organization: the Eventual ‘Greening’ of Trade?

Published on June 20, 2017        Author: 

This post is the result of work conducted for the ILA Committee on Sustainable Development and the Green Economy in International Trade Law.

In a recent post, Diane Desierto discussed the Port State Measures Agreement (‘PSMA’) and its role in attempting to combat illegal, unregulated, and unreported (‘IUU’) fishing. Aside from the numerous interesting aspects of the PSMA identified in that post, the Agreement is also expected to play a key role in regulating IUU fishing beyond the law of the sea. At the World Trade Organization (‘WTO’), members are currently in negotiations to prohibit the use of subsidies which contribute to IUU fishing, as well as those that contribute to overfishing or overcapacity. While the elimination of fisheries subsidies which contribute to IUU fishing have been on the agenda of WTO members since the Doha Declaration in 2001, little progress has been made. The adoption of Agenda 2030 and its 17 Sustainable Development Goals (‘SDGs’) in 2015 has changed this, giving new energy to the international community to achieve a specific set targets. Of most relevance here is SDG 14.6 which requires

‘by 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU fishing, and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the WTO fisheries subsidies negotiation.’

The objectives of SDG14.6 extend beyond subsidies that contribute to IUU fishing to include those that contribute to overcapacity and overfishing. Disciplining such subsidies raises a number of challenges for the WTO. While the regulation of subsidies is a standard feature of world trade law, fisheries subsidies present unique challenges. For example, where a member considers a subsidy to harm their interests, they have two options under the Agreement on Subsidies and Countervailing Measures (ASCM): through direct challenge under the WTO’s dispute settlement system, or through the imposition of countervailing duties as a self-help remedy which seeks to counteract the effect of the subsidy. In each instance, the rules on subsidies seek to avoid harm to members’ interests, understood (inter alia) as injury to domestic industry, lost opportunities in third markets, or nullification or impairments of benefits.

Read the rest of this entry…

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The Jadhav Case and the Legal Effect of Non-Registration of Treaties

Published on June 19, 2017        Author: 

Those following the legal tangle of the Jadhav Case closely would have noticed India’s (attempted) coup de grâce in its oral submissions regarding the bilateral Agreement on Consular Access of 21 May 2008 between India and Pakistan (“2008 Agreement”, Annex 10 in India’s Application Instituting Proceedings) – that it is unregistered and thus, incapable of being invoked. Pakistan’s oral submissions indicate that this Agreement will form a large part of its case on merits, which in fact, is far stronger than the Indian or Pakistani media give it credit for. Pakistan claims that, irrespective of guilt, the fact of arrest on “political or security grounds” exempts Jadhav from the right of consular access, as per paragraph (vi) of the Agreement, which reads as follows: “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on merits.” Pakistan interprets this examination “on merits”, as regarding the grant of consular access itself, making it a matter of discretion rather than right.

India met this contention head on in the oral stage, with a two-pronged argument. First, it argued that the 2008 Agreement does not purport to restrict or reduce consular access rights provided by the Vienna Convention on Consular Relations, 1963 (“VCCR”). According to India, the 2008 Agreement is for the purpose of “confirming or supplementing or extending or amplifying” (Art. 73 VCCR) the VCCR rights, to the extent that the Agreement “further[s] the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country” (preamble of the 2008 Agreement). To that extent, the first part of the Indian argument is one of interpretation of paragraph (vi) of the 2008 Agreement. The argument is that the Agreement must not be interpreted as exempting those arrested on political or security grounds from consular access since such an interpretation would be contrary to its preamble, to the VCCR, and to the law of treaties, since Art. 41 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”) permits subsequent bilateral agreements only when they are harmonious with pre-existing multilateral treaties. India has not yet offered a counter-interpretation of paragraph (vi). However, a fair guess is that it will argue that the envisaged “examin[ation]…on merits” is for determining the grant of additional rights conferred by the Agreement (such as immediate release and repatriation) and not for the grant of basic VCCR rights themselves. Read the rest of this entry…

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Announcements: BIICL Director Vacancy; Extraterritoriality of EU Law and Human Rights After Lisbon Workshop; CfA International Dispute Resolution; Access to Remedy in National Action Plans to Implement the UNGPs

Published on June 18, 2017        Author: 

1. BIICL Director Vacancy. The British Institute of International and Comparative Law (BIICL) is seeking to appoint an exceptional candidate to the role of Director. BIICL conducts research and activities around the world across the broad range of public international law, private international law, comparative law and the rule of law. This is an exciting opportunity to hold a unique and high profile post in one of the most respected independent legal research institutes in the world. This is a full-time post for a five-year period, which may be renewed. Secondments from other institutions will be considered. The deadline for applications is 24 July 2017. For information on how to apply, see here. Informal enquiries may be addressed to the Deputy Director of BIICL, Patricia Ambrose, at p.ambrose {at} biicl(.)org. To view the full job description please see here.

2. Extraterritoriality of EU Law and Human Rights After Lisbon Workshop. The University of Sussex is hosting the research workshop ‘Extraterritoriality of EU Law and Human Rights After Lisbon: Scope and Boundaries’ on July 13 and 14. Anybody interested in attending the workshop should contact Dr Velluti [S.M.Velluti {at} sussex.ac(.)uk] and Dr Tzevelekos [v.tzevelekos {at} liverpool.ac(.)uk]. Attendance is free of cost but space is limited, with attendance allocated on a first come basis. See here for further information.

3. Call for Abstracts – International Dispute Resolution. The Dispute Resolution Interest Group (DRIG) of the American Society of International Law (ASIL) and the Lewis & Clark Law School are pleased to announce a workshop to discuss academic works-in-progress on international dispute resolution, taking place at the Lewis & Clark Law School on the afternoon of 10 November 2017.  Each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. Submissions are welcome from academics and practitioners around the world. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. Abstracts up to 500 words may be submitted by 5pm Pacific Time, 15 July to this folder.  Participants must submit a substantial work in progress by 21 October 2017, which will be circulated in advance of the workshop to all participants. It is expected that this work will consist of a working draft paper at least 20 pages long. Please direct any questions to pbechky {at} bcr-dc(.)com or foster {at} lclark(.)edu.

4. BIICL Event: Access to Remedy in National Action Plans to Implement the UNGPs: Are States Still Taking a Nap? This event will take place on 22nd June 2017: 17:30-19:00. Access to effective remedies is a key component of the UN Guiding Principles of Business and the Human Rights (UNGPs). Despite an impressive uptake of the UNGPs by almost all stakeholders, the victims of business-related human rights abuses continue to struggle in holding corporate actors accountable. Why is this so? This seminar will explore this question in relation to National Action Plans (NAPs) released so far by states. Surya Deva will propose certain key elements that should guide future NAPs as well as the revision of existing NAPs in improving access to effective remedy in business-related human rights abuses. Organised and chaired by BIICL as part of the Economic and Social Research Council Business and Human Rights Seminar Series. Speaker: Surya Deva, City University of Hong Kong and Member of the UN Working Group on Business and Human Rights.

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Election of Judges to the International Tribunal for the Law of the Sea

Published on June 17, 2017        Author: 

2017 will be a busy year for elections to international tribunals. There will be elections later this year to elect five Judges of the International Court of Justice and six judges of the International Criminal Court (see here). Earlier this week, the States Parties to the United Nations Convention of the Sea elected seven Judges to the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges and elections for seven judges are held every three years. As with the ICJ and the ICC, ITLOS judges serve for a term of 9 years and may be re-elected [Art. 5(1)ITLOS Statute]. The purpose of this post is to simply to report the results of the 2017 ITLOS election and to make a few observations about possible trends in elections to international tribunals.

The States Parties re-elected two judges currently on the ITLOS bench: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). The five new judges taking up their seats on the 1st of October 2017 will be: Mr Oscar Cabello Sarubbi (Paraguay), Ms Neeru Chadha (India), Mr Kriangsak Kittichaisaree (Thailand), Mr Roman Kolodkin (Russian Federation), and Ms Liesbeth Lijnzaad (The Netherlands).  The full list of candidates for the elections can be found here. Judges are elected where they obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties [Art. 4(4), ITLOS Statute]

An interesting development in the current ITLOS election is the failure of two serving judges: Judges Joseph Akl (Lebanon) and Rudiger Wolfrum (Germany) to be re-elected.  The qualifications and experience of these judges are beyond doubt. However, both have been on ITLOS since its formation in 1996 and there might be a feeling that 21 years is long enough for anyone. I have heard it said at the UN there is a feeling among states that though there are no formal term limits for judicial positions, treaty bodies and the like, it is not healthy for individuals to be there for too long. It was a surprise to some (myself included) when the late Sir Nigel Rodley was not re-elected to the Human Rights Committee last year and perhaps the long period of service on the Committee was a factor. This is an issue that states should take into account in nominating candidates.

Two of the seven judges elected are women (Neeru Chadha and Ms Liesbeth Lijnzaad, who both recently represented their states in the Enrica Lexicie and Artic Sunrise proceedings before ITLOS.). Read the rest of this entry…

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