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The ICJ and Evolutionary Treaty Interpretation

Published on July 14, 2009        Author: 

On Monday, the ICJ delivered its judgment in the Costa Rica v. Nicaragua case, concerning navigational and related rights on the river San Juan (Registry summary; judgment). The case itself is not terribly important in the grand scheme of things, but upon reading the judgment I came across several questions of broader import that our readers might find of interest.

But first just to say a bit about the facts of the case for the sake of greater comprehension. The river San Juan is on the border between Costa Rica and Nicaragua. The border, however, does not run along the thalweg of the river, as is usually the case with river borders, but is set by treaty to run along the Costa Rican coast. Thus, the entire river belongs to Nicaragua as sovereign. The question raised by the case is what are the navigational and related rights on the river of Costa Rica and its riparian communities, under the terms of the 1858 Treaty of Limits between Costa Rica and Nicaragua. The principal of these rights was set by Article VI of the Treaty, giving Costa Rica a perpetual right of free navigation ‘con objectos de commercio’.

There was a dispute between the parties as to the meaning of this last phrase, with Costa Rica claiming that it meant ‘for the purposes of commerce’, while Nicaragua maintained that it meant solely ‘with the articles of commerce’, i.e. with merchandise (para. 45). On this issue, the Court sided with Costa Rica (paras. 50-56), and the judgment is generally speaking more in its favor than in Nicaragua’s. The background to this dispute is at least partly one of economic self-interest: Costa Rica claimed that this phrase covered not merely trade in goods, but also trade in services, such as the transportation of tourists and passengers on the river by Costa Rican ships. Nicaragua, on the other hand, asserted that the phrase covered only the trade in goods.

This brings me to the issues of general import raised in the case. First, and most important, is the Court’s approach to treaty interpretation. In that regard the Court gave short shrift to its long-standing dicta that restrictions on state sovereignty are not to be presumed lightly (paras. 47-48), and it also made several fascinating remarks on evolutionary treaty interpretation, to which I will devote the bulk of this post.

Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court considered to have exhaustively regulated the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanated from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.

Third, there is the Court’s willingness the establish, with very little evidence, the existence of a bilateral customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court derived such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest derived not from the lack of practical significance of the very small amount of fishing involved, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.

Indeed, the Court found such a customary right even though Costa Rica never claimed, until the case came to the Court, that it had such a right in its relations with Nicaragua. The Court justified its position by saying that the paucity of evidence of custom is explained by the remoteness of the area and its small population (para. 141). Now, we all know that in some cases the Court does not apply the criteria for formation of custom in a very rigorous way (e.g. regarding the use of force in the 1986 Nicaragua case), while in others it is conversely extremely hostile to the existence of custom (e.g. in the Asylum or the North Sea Continental Shelf cases). But I don’t think that I’ve ever seen the Court establish a customary rule, even a bilateral one, in quite so off-hand a way as it did here. In that regard, I find the separate opinion of Judge Sepulveda to be more persuasive.

But now onto the juiciest part of the judgment, the Court’s approach to evolutionary treaty interpretation. (Warning and apologies in advance for any overly-theoretical rambling).

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Response to Alison MacDonald’s and Dapo Akande’s comments

Published on July 14, 2009        Author: 

We thank Alison MacDonald for her illuminating and extremely useful perspective on the developments in the approach of the British courts to adjudication based on international law. In many respects the changing attitude toward international law,  headed by the House of Lords under the unmistakable leadership of Lord Bingham, has provided an example for other national courts (NCs) to follow, starting in 2004 with the so-called Belmarsh Detainees judgment, that stunning 8-1 majority declaration that found the detention of foreign suspected terrorists incompatible with the Human Rights Act.  Such leadership is critical to change the status quo not only within a jurisdiction but also regionally and perhaps even globally (and no doubt, as MacDonald suggests, it facilitated a mutually reinforcing relationship between the House of Lords and the ECtHR).

Other useful observations of MacDonald’s that are worth highlighting include the reference to the Court of Appeal’s blend of interpretive biases as leading – as often is the case – to conceptual confusion (in this case between customary and conventional international law); the inclusion of the Divisional Court’s “bright line” rationale characterizing the division of responsibilities between domestic and international courts followed by a brief documentation of the principle’s growing impracticality and obsolescence, and the description of how NCs continue to emphasize the importance of continuity and their fealty to their traditional role even as they venture further and further into the international legal sphere. This is an excellent example of how low visibility, incremental change can achieve a great deal at relatively low political cost.

We thank Professor Akande for his thoughtful review of our main arguments presented in our recent EJIL essay. We reproduce a number of his points below and respond to each of them in turn. A fuller treatment of a number of the issues that Akande raises can be found in several of our recent publications in this area (see Benvenisti 2008, Benvenisti & Downs 2009, and Benvenisti & Downs forthcoming 2009). Read the rest of this entry…

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Three Cheers for the Application of International Law by Domestic Courts! Or should that be two? A response to Benvenisti & Downs.

Published on July 13, 2009        Author: 

Last month, Professors Eyal Benvenisti and George Downs posted a summary of their latest EJIL article – “National Courts, Domestic Democracy and the Evolution of International Law”  – which set out the issues discussed in that article (available here) in the context of the authors’ scholarship in this area. The article impressively surveys trends regarding the extent to which domestic courts will defer to the executive branch in the area of foreign affairs. It also considers what the authors see as growing inter-judicial cooperation which enhances the increasing boldness of courts not only with regard to their executives but also in reviewing the policies of international organizations. The article argues that unlike the position nearly two decades ago, domestic courts are increasingly abandoning their traditional deference to the executive when dealing with questions of foreign affairs. The evidence for this assertion is not set out in this article but is considered elsewhere by Professor Benvenisti. The comments by Alison MacDonald here on this blog support this assertion, at least as far as English courts are concerned. Benvenisti and Downs find the reasons for this change of judicial attitude in changes in assumptions which had previously underpinned the idea that foreign policy ought to be the preserve of the executive. The assumptions which are now being undermined are said to be that: (i) the boundary between domestic and foreign affairs was well defined with both being distinct; (ii) the executive was best placed to protect the domestic interest in international affairs and (iii) international interaction should be as free of legal restraints as possible. The changes in these assumptions seem to be persuasive in explaining a change on the part of domestic courts with regard to judicial intervention in foreign affairs. Even if the change of assumptions did not precede a change in attitude, increased judicial intervention would not be consistent with these assumptions. Benvenisti &Downs’ (B&D) arguments regarding the changes in the relationship between national courts and domestic executives and the use of international law by national courts to restrain their executives are plausible but are not always compelling, nor do they always follow logically from the evidence.

Judicial Oversight of Foreign Policy and Judicial Embrace of International Law do not always go together

One of the themes which underlines the article seems to be an assumption that a move away from deference to the executive in foreign affairs will usually be a move towards engagement with international law and vice versa. This point can be seen in the opening sentence of the abstract of the article: “National courts are gradually  abandoning their traditional policy of deference to their executive branches in the field of foreign policy and beginning more aggressively to engage in the interpretation of international law.” However, the two do not necessarily go together and have not always gone together in domestic judicial practice. Read the rest of this entry…

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Is Sudanese President Bashir Immune from Arrest?

Published on July 11, 2009        Author: 

In a post last week, I mentioned a forthcoming article of mine dealing with Bashir’s Immunity. That article titled “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” has now been published in the latest issue of the Journal of International Criminal Justice (available here).  The  abstract of my article is as follows:

This article considers whether states are obliged or permittedto arrest Sudanese President Omar al Bashir pursuant to a warrantof arrest issued by the International Criminal Court (ICC).The article considers the extent to which the ICC Statute removesimmunities which would ordinarily be available to state officials.It is argued that the removal of the immunity by Article 27of the ICC Statute applies also at the national level, whennational authorities act in support of the ICC. The articleexamines the application of Article 98 of the ICC Statute andconsiders the legal nature of Security Council referrals tothe ICC. It is argued that the effect of the Security Councilreferral is that Sudan is to be regarded as bound by the ICCStatute and thus by Article 27. Given that the Statute operatesin this case not as a treaty but by virtue of being a SecurityCouncil resolution, the removal of immunity operates even withregard to non-parties. However, since any (implicit) removalof immunity by the Security Council would conflict with customaryinternational law and treaty rules according immunity to a servinghead of state, the article considers the application of Article103 of the United Nations (UN) Charter in this case.

In the same issue (which contains a symposium on the Bashir Case), there is an article by my friend and fellow EJIL Scientific Advisory Board member,  Professor Gaeta (Universities of Florence and Geneva) which takes a different view. Read the rest of this entry…


The Strange Case of Florence Hartmann

Published on July 9, 2009        Author: 

Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy; and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies, John Hopkins University, Washington DC. She is also a  visiting fellow at the Hoover Institution. Previously, she served as a federal prosecutor in the Southern District of New York, and designed the redaction procedures that became the Classified Information Procedures Act

A striking consensus is emerging in Washington for a closer relationship with the International Criminal Court. Even some staunch conservatives have backed the idea of lending logistical, political, and diplomatic assistance to the ICC on a case-by-case basis – to act against the most shocking outrages of genocide, crimes against humanity, and systematic war crimes.

Yet, with notoriously bad timing, the path to this cooperation may be washed away, due to a troublesome and unnecessary fight brewing at a sister criminal tribunal in The Hague.

The fracas has arisen at the ad hoc United Nations war crimes court tasked since 1993 to try cases from the bloody ethnic war in the former Yugoslavia. This is a high-performing tribunal that has enjoyed strong leadership from its American judges and other admired jurists. The court is currently focused on the prosecution of Bosnian Serb leader Radovan Karadzic and has an indictment and arrest warrant waiting for fugitive Bosnian Serb general Ratko Mladic.

But this exemplary war crimes court also has a mess on its hands, partly of its own creation. The outcome will hold an important lesson for the transparency that any international criminal court should maintain, even amidst the difficulties of dealing with sovereign states. To be acceptable to democratic states and publics, an international court should make available the logic and effect of its rulings. There can be no secret jurisprudence, unavailable to debate and critique by an audience of lawyers, political leaders, and citizens.

Yet, in a summary proceeding now underway at the tribunal, three judges hailing from China, Turkey, and South Africa are threatening to send a French journalist to jail on a charge of criminal contempt for revealing the bare-bones logic of two appellate opinions. No witness has been endangered. No sealed arrest warrant was thwarted. And the criminal case to which the decisions pertained was ended by the fatal heart attack of former Yugoslav strongman Slobodan Milosevic in his jail cell in The Hague in March 2005. Read the rest of this entry…

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ICTY Trial Chamber’s Decision on Karadzic’s Holbrooke Agreement Motion

Published on July 8, 2009        Author: 

Today the Trial Chamber of the ICTY presiding over the Karadzic case rendered its decision on the defense challenge to the ICTY’s jurisdiction on the basis that Karadzic had entered into an agreement with Richard Holbrooke that promised that he would not be prosecuted. This is the latest of Karadzic’s attempts to invoke this alleged agreement between him and Holbrooke, albeit now with the help of two theories, the first being that Karadzic was an agent or acted with actual or apparent authority of the UN Security Council or the ICTY Prosecutor, and the second that it would be an abuse of process to try Karadzic who could have reasonably relied on the putative agreement.

The Chamber quite rightly (despite what my friend Kevin Heller might say), and unsurprisingly, rejected Karadzic’s motion. It also rejected his request to hold an evidentiary hearing on the disputed facts regarding the alleged agreement, stating at para. 46 that ‘If the Accused cannot obtain the relief he seeks as a matter of law, then the issue of whether the Agreement was ever made is irrelevant to any issue other than sentence, on which evidence may be led at trial. The Trial Chamber rejects the Accused’s submission that not having an evidentiary hearing at this stage would be a disservice to history. The Chamber’s purpose is not to serve the academic study of history.’

Did Holbrooke promise Karadzic that he would not be prosecuted? Probably. But so what? It simply boggles the mind that a reasonable war crimes suspect (if we grant Karadzic the ‘reasonable’ part) could rely on a purely oral, furtive promise by a US envoy as a binding legal guarantee, or indeed that he saw Holbrooke as an agent of the UNSC or, even less so, of the Prosecutor. Even assuming that Karadzic saw Holbrooke as acting on behalf of the UNSC, Karadzic could only come up with a strained agency theory plucked from domestic law in support of his argument that an agreement between Karadzic and the UNSC would bind the ICTY even in the absence of a subsequent UNSC resolution, as the Chamber correctly points out at para. 58.

However, don’t expect that this decision will put an end to the Holbrooke agreement matter. This is Karadzic’s favourite theme, and it will keep coming up. Indeed, the Trial Chamber has allowed Karadzic’s legal advisers to continue with their agreed-upon interviews of Carl Bildt and UN officials, stating that this might have relevance for Karadzic’s eventual appeal and sentence.

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A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi

Published on July 7, 2009        Author: 

Devika Hovell is a DPhil Candidate in international law at the University of Oxford, and Associate Fellow  at Chatham House. She worked formerly as Director of the International Law Project and Lecturer in International Law at the University of New South Wales. Her doctoral thesis applies a procedural fairness framework to Security Council  decision-making on sanctions.

Recent developments following the decision of the European Court of Justice in Kadi indicate that the decision may require a more holistic response to due process by the Security Council than has been contemplated to date. The 11 June 2009 decision of the Court of First Instance in Othman v Council of the European Union, the European Commission’s proposal on 22 April 2009 to enact a regulation enabling it to second-guess Security Council sanctions listings and Mr Kadi’s initiation of new proceedings in the Court of First Instance on 26 February 2009 all provide potential new challenges to the ability of EU member states to comply with the Security Council sanctions regime. The leak sprung in the sanctions regime with the ECJ’s decision in Kadi threatens to assume a more sieve-like quality as more and more designations risk being overridden at the regional or domestic level on due process grounds. As the repercussions of the Kadi decision become increasingly pervasive, there is a sense that even the tectonic Permanent Five may be starting to shift on the issue.

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Is the Rift between Africa and the ICC Deepening? Heads of States Decide Not to Cooperate with ICC on the Bashir Case

Published on July 4, 2009        Author: 

Disclosure: I have acted as consultant to the Commission of the African Union on the question of the relationship between African States and the ICC. Note: This is a long post. If you’re interested in whether Bashir is entitled to immunity under the ICC Statute I try to provide answers at the end.

As I discussed in a previous post (see here) there has been tension between African States and the ICC regarding the indictment of Sudanese President Omar Al Bashir. It is reported (here and here) that the Assembly of the African Union (which meets at the level of Heads of States and Governments), has adopted a resolution calling on all African States not to cooperate with the International Criminal Court on the Bashir case.  In the resolution:

“(The African Union) decides that in view of the fact that a request of the African Union (to defer al Bashir’s indictment) has never been acted upon, the AU member states shall not cooperate persuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of Sudanese President Omar al Bashir to the ICC,”

 This, of course, means that the AU Assembly is calling on States not to take steps to arrest Bashir and not to allow the ICC to conduct investigations on their territory (eg interviewing victims) relating to the Bashir case. The resolution arises out of anger not just at the fact that a sitting head of State has been indicted but because the UN Security Council has failed to take up the African request for deferral of the case under Art. 16 of the Rome Statute. In some ways, the resolution takes a middle position among the range of views that have been taken by African States. Some States have taken a hardline position and would have liked to push for African States to the ICC Statute to withdraw or at least consider withdrawing from the Rome Statute. At the other end of the spectrum, others would have preferred a reiteration of the request for deferral.

There is some confusion in press reports about whether the text of the current resolution was adopted unanimously or not. As I noted in my earlier post, there is significant support for the ICC among African States. It is noteworthy that  this resolution confines its call for non-cooperation solely to the Bashir case.  ICC investigation of the other situations before the ICC continues to have the support of the countries (Uganda, Democratic Republic of Congo, Central African Republic) where those situations arise from. Also on the same day that the AU adopted this resolution, Kenyan officials met with the ICC Prosecutor (see here and here) and agreed that if the Kenya Parliament is unable to adopt legislation to establish a tribunal to deal with 2007 post election violence in that country, the government would refer the situation to the ICC.

The point that African States are not to be seen as rejecting the ICC as an institution or the Rome Statute as a treaty can also be seen from the fact that the AU has sought to use mechanisms within the Rome Statute in order to halt the Bashir case. First, there was the attempt to use an Art. 16 deferral. Now, this resolution justifies the call for non-cooperation on the basis of Art. 98 dealing with immunity. This leads to the question whether Art. 98 does indeed permit States parties to the Statute to refuse cooperation on the basis of the immunity of a Head of State. Read the rest of this entry…


The European Court’s Admissibility Decision in Al-Saadoon

Published on July 3, 2009        Author: 

Today a Chamber of the European Court of Human Rights made public its admissibility decision in Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, a very important case. In brief, the facts are these: the applicants were detained by UK forces in Iraq, and first complained to English courts, and then to the European Court, that their requested transfer to Iraqi authorities would violate the non-refoulement obligations of the UK, inter alia under Art. 2 ECHR, as there was a serious risk that they would be subjected to the death penalty. The first issue to be decided in the case is whether the ECHR applies extraterritorially to the applicants, i.e. whether the applicants could be said to fall within the UK’s jurisdiction within the meaning of Art. 1 ECHR. The Chamber found that the applicants were within the UK’s jurisdiction, and declared the application admissible. But first, some background.

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