Home 2011 July

Launch of Annual Junior Faculty Forum for International Law

Published on July 31, 2011        Author: 

Today Anne Orford of the University of Melbourne Law School, JHH Weiler of the NYU School of Law, and Dino Kritsiotis of the University of Nottingham School of Law launched the Annual Junior Faculty Forum for International Law. The Forum is designed to assist junior faculty, i.e. those within the first six years of their academic careers, with their research by staging an annual competition in which six to nine individuals will be selected and asked to make presentations to the Forum in a given year: these presentations will then be paired with senior international legal scholars, who will comment on each of the presentations given to the Forum, so that the papers are eventually worked up and prepared for publication. The Forum will be an annual event on the international law calendar, and the inaugural Forum will be hosted in New York City by the Jean Monnet Center for International and Regional Economic Law & Justice; it will occur in May 2012.

Further particulars of the process are now available on . Selected presentations from the inaugural forum will be published in a special issue of the EJIL.

Filed under: Conference, EJIL Reports
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Can Libya Sue the UK on Recognition of the National Transitional Council?

Published on July 30, 2011        Author: 

Earlier this week, the UK Foreign Secretary, William Hague announced that the UK now recognises the Libyan National Transitional Council (the rebels fighting Colonel Gaddafi’s forces) as the sole governmental authority in Libya. This was an implementation of the decision reached in the context of the Libya Contact Group meeting which I spoke about last week (see here). As part of the UK’s decision, the UK has expelled those Libyan diplomats in the UK appointed by Gaddafi and has invited the Libyan NTC to appoint a new diplomatic envoy to the UK. As indicated in my previous post, one of the consequences of the recognition decision (and perhaps one of the drivers of the decision) is that the UK is willing to release some Libyan assets in the UK for use by the NTC. In particular, the UK is unfreezing £91 million belonging to a Libyan oil company which is controlled by the NTC. However, the vast majority of the Libyan State’s assets in the UK remain frozen.

In response to all of this the Libyan Deputy Foreign Minister (by which I mean the Gaddafi govt’s Deputy Foreign Minister) declared that these moves by the UK are illegal and that Libya will sue the UK in the International Court of Justice and in British domestic courts. Libya has been involved in quite a few cases before the ICJ – recall the maritime delimitation cases with Tunisia and with Malta in the 1980s, the Lockerbie cases against the UK and the US in the 1990s – so it is perhaps no surprise to hear that they are considering another suit at the ICJ. But are there jurisdictional grounds for such a suit and what exactly might such a claim involve? Read the rest of this entry…


Commonwealth Revises its Model Law on the International Criminal Court

Published on July 28, 2011        Author: 

The Commonwealth has recently revised and updated its Model Law on the Implementation of the Rome Statute of the International Criminal Court.  The Commonwealth is an organization of 54 States that were, in the main, formerly part of the British empire. 35 of those States are parties to the Rome Statute. The Model Law provides a template that Commonwealth member States may use (and have used) in drafting their own national ICC Statutes.The Revised Model Law of 2011, updates the Commonwealth Model Law of 2004. The revision was called for by a high level expert meeting held in October 2010 (chaired by Akbhar Khan, Commonwealth Legal Director) in order to take account of the experience since the Rome Statute came into force. An expert group, consisting of representatives from States and civil Society was set up to undertake the revision. This group was chaired by Professor Charles Garraway and I had the pleasure and honour of taking part in the group. The revised Model Law and the report of the Group were adopted on July 14 by the Commonwealth Law Ministers meeting in Sydney Australia. The full text of the revised Model Law can be found here on the website of the Commonwealth Secretariat.

A summary of the key revisions can be see in the Chair’s Report to the Commonwealth Law Ministers. The group took account of developments in the Kampala Review Conference and

considered whether to include provisions on the crime of aggression in the Commonwealth model law at the present time. After considerable discussion, it was decided by the majority of the Group that further work is required and inclusion would be premature. It considered that the issue should be revisited before 2017.

One area where a change was made to the Model Law was the provision dealing with immunity. The Bashir and Gaddafi cases have highlighted the importance of clarifying the position on immunity in situations referred to the ICC by the Security Council. Section 25 of the previous Commonwealth Model Law stated that any immunity by reason of a connection with a State Party to the Rome Statute does not prevent domestic action taken in support of ICC proceedings (such as arrest and surrender to the ICC).  This provision is reflected in the domestic law of a number of commonwealth States (including the UK). However, this provision has now been extended in the revised Commonwealth Model Law, to exclude application of  immunity attaching by reason of a State with respect to which the United Nations Security Council has made a referral to the ICC or a State which, whilst not a State Party has accepted the jurisdiction of the ICC. That provision would now explicitly deal with the Bashir and Gaddafi cases.

In addition to the revised Model Law, the Commonwealth signed a Memorandum of Understanding with the International Criminal Court (see here and here).  The agreement is intended to enhance cooperation between the two organizations in particular in supporting domestic implemention of international criminal law.

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Gaddafi’s Government Abolishes Port Charges in Attempt to Avoid Libya Sanctions

Published on July 27, 2011        Author: 

The government of Colonel Gaddafi has recently issued a decree abolishing all charges in Libya’s ports in an interesting attempt to avoid the effect of sanctions imposed by the United Nations Security Council. The Security Council by Resolution 1970 and 1973 has imposed targetted sanctions on certain Libyan individuals and entities (including travel bans and asset freezes). In particular, under, para. 19 of SC Res 1973 the Council decided that:

that all States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the Libyan authorities, as designated by the Committee, or individuals or entities acting on their behalf or at their direction, or entities owned or controlled by them . . .

Clearly, this provision was not intended to impose a comprehensive trade ban with Libya as it does not expressly prevent the export of goods to Libyan territory in general (nor importation from Libyan territory in general). The provision is intended to prevent transfers of funds or assets to the Libyan authorities (meaning the government of Colonel Gaddafi).  However, if exporters to Libya (or those wishing to export from Libya) are required to pay charges to the Libyan government when their vessels and goods are at a Libyan port, they will be caught by this provision as they will then be making funds available to the Libyan authorities. So some smart lawyer must have told the Libyan government that in order to avoid what will in effect be a comprehensive ban on trade with Gaddafi controlled Libya they need to avoid the port charges.

Filed under: EJIL Analysis, Libya
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The African Union takes on the ICC Again: Are African States Really Turning from the ICC?

Published on July 26, 2011        Author: 

In the latest summit meeting of the African Union (AU) held in Malabo, Equitorial Guinea, the AU Assembly of Heads of States and Governments has reiterated its opposition to a number of prosecutions at the International Criminal Court (ICC). Readers will recall that all the situations under investigation and prosecution at the ICC relate to African countries. While half of these situations were referred to the ICC by the African States themselves (Democratic Republic of Congo,Uganda, Central African Republic), the AU objected to the decision of the ICC to prosecute Sudanese President Omar Al Bashir. It has called on the UN Security Council to act under Article 16 of the Rome Statute and defer proceedings against Bashir. It has also decided that African States should not comply with the ICC with regard to the Bashir case, including a call for non-compliance with the arrest warrant for Bashir (see previous posts here). In addition, the AU has also called on the UN Security Council to defer the investigations and prosecutions in the Kenya situation (see posts by Max du Plessis and Chris Govers here and here). At the latest AU summit, the AU Assembly has reiterated these calls with regard to the Bashir case and the Kenyan situation. It has now also also called on the Security Council to defer the investigations in Libya and called on AU members not to cooperate with the ICC with regard to the recent arrest warrant for Gaddafi, his son and the Libyan intelligence chief (on which see this post).

So the tension between the AU and the ICC still seems relatively high and is worrying given the fact that the African regional group is the largest grouping among ICC States parties. However, the picture is mixed and all is not doom and gloom. Despite these AU decisions there are still positive signs of support by African States for the ICC. Firstly, one should recall that those African States that have “self-referred” matters to the ICC continue to support ICC prosecutions and to cooperate with the Court. Indeed, the AU itself has not called for non-cooperation with regard to those situations. Secondly, African States have continued to ratify the Rome Statute, the latest of which is Tunisia. Also Cote d’Ivoire as a non party has recently reconfirmed its acceptance of ICC jurisdiction over events in that country. Thirdly, even with regard to Sudan, the AU has not called for deferral of prosecutions in (or non-cooperation with the ICC with regard to) the entire situation. It has only singled out the Bashir case which is only one of the prosecutions with respect to Darfur. Fourth, the position of African States is not solidly in support of the AU position with regard to the cases where it has called for non-cooperation. Some African States have taken a different view and consistently done so. Botswana has probably been the most vocal against the AU decisions on these issues. Just days after the recent AU decision, the Goverment of Botswana issued a statement where it rejects the AU Assembly position, “reiterates her position in support of the [ICC] warrant of arrest and  “calls on fellow members of the AU to support the ICC in carrying out its mandate to apprehend the Libyan leader, as a critical step towards alleviating the plights of the Libyan people, and paving the way for a new democratic dispensation in that country.”

There have been some questions as to whether AU Assembly decisions on this issue impose obligations on AU Members.  Read the rest of this entry…


ICJ Permits Greece to Intervene in Germany v. Italy Immunity case

Published on July 25, 2011        Author: 

On the 4th of July, the International Court of Justice (ICJ) decided that Greece can intervene in the Jurisdictional Immunities of the State case (Germany v. Italy). The case concerns a claim by Germany that Italian courts have failed to respect the sovereign immunity of Germany in cases brought in Italian courts dealing with human rights violations by Germany during World War II. In addition to cases originating in Italy, Germany alleges that Italian courts have acted in breach of international law by enforcing, in Italy, the judgment of the Greek courts in the Distomo massacre case. Greece’s request for intervention relates to the aspect of the case that deals with enforcement of the Greek judgments (which relate to claims by Greek nationals). The ICJ’s decision permits intervention only in relation to that aspect of the case. For more details on Greece’s request to intervene, see the post by Antonios Tzanakopoulos and for more on the original case, see my own post from when the case was first filed in 2009.

I believe that this is only the third time in the history of the present Court in which intervention under Article 62 of the ICJ Statute has been permitted. Article 62 permits a State which has an interest of a legal nature in the subject matter of the case to apply to the Court for permission to intervene. In most cases, where Article 62 intervention has been requested, the ICJ has denied the request. Most recently (in May of this year), the Court denied requests for intervention by Honduras and Costa Rica in the Territorial and Maritime Dispute (Nicaragua v Colombia) (see decisions here and here). The ICJ’s decision to permit Greece’s intervention in the Immunities case was reached without the Court holding a hearing on the issue. This is because neither of the two original parties to the case (Germany and Italy) objected to the intervention. Greece will be intervening as a non-party to the case, meaning that it will not be bound by the decision of the Court but it cannot put it’s own claims at issue.

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Recognition of Libyan National Transitional Council as Government of Libya

Published on July 23, 2011        Author: 

On June 16, I wrote a post asking “Which Entity is the Government of Libya and Why does it Matter?” In that post, I explained that what appeared to be recognition by a number of States of the Libyan “rebel” National Transitional Council (NTC) as the government of Libya was not necessarily so (see also the ASIL Insight published on the very same day as my post by my colleague Stefan Talmon). Matters have now changed quite dramatically. A month later (on July 15), a group of 32 States (including the United States and the United Kingdom) at the Libya Contact Group meeting in Turkey issued a statement in which they declared that:

The Contact Group reaffirmed that the Qaddafi regime no longer has any legitimate authority in Libya and that Qaddafi and certain members of his family must go. Henceforth and until an interim authority is in place, participants agreed to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya.

This is clear recognition, by members of the Contact Group, of the NTC as the government of Libya.

As noted in my previous post, such formal recognition is contrary to the stated policy of many of these countries that they do not recognise governments. In reality, States always have to decide which entity they consider to be the government of other States. However, the policy of not recognizing governments meant that some countries would not make formal statements announcing the recognition decisions they had made. This statement by the contact group not only exposes the lack of reality in the policy of not recognizing but even goes against the practice of not making formal statements regarding recognition.

One of the main consequences of this joint act of recognition is that it may permit the NTC to lay claim to foriegn assets of Libya. Many of those assets are currently frozen under sanctions imposed by the US and the European Union. However, even, if the executive branch in those countries reverses those  freezes (see report here at Bloomberg Businessweek), there may well be litigation in domestic courts raising the question of who is entitled to control those resources (the NTC or the Gaddafi authorities). Read the rest of this entry…

Filed under: EJIL Analysis, Government, Libya

Recent Developments with Regard to ICJ Provisional Measures

Published on July 21, 2011        Author: 

On Monday of this week, the International Court of Justice indicated provisional measures in the case between Cambodia and Thailand regarding the Temple of Preah Vihear. The case was filed earlier this year after confrontations between the armed forces of both States in the area of the Temple. The case concerns a request by Cambodia for interpretation of the judgment that the ICJ issued in 1962 in the orignal dispute between the two States. In that earlier judgment, the Court had found that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia;” and that “Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.” In the request for interpretation, Cambodia is asking the Court to clarify the meaning of the phrase “vicinity on Cambodian territory”, to state that the obligation to withdraw from that vicinity is a continuing obligation (and not a one time obligation fulfilled back in 1962). Most importantly, it seems to me, Cambodia is asking the Court to state that its 1962 judgment recognized with binding effect the frontier line that was indicated on the so called “Annex 1 map” extensively discussed by the Court back in 1962 (but which was not referred to in the operative part of the judgment). In other words, Cambodia wishes the court to clarify that the 1962 judgment did not just recognise that the Temple and its vicinity is are on Cambodian territory but determined the frontier between the two State more generally.

 In its provisional measures order, the Court went beyond the request by Cambodia which was that the Court order Thailand to withdraw its forces from those parts of Cambodian territory in the area of the Temple. Instead, the Court decided to address its orders to both parties and ordered:

Both Parties shall immediately withdraw their military personnel currently present in the provisional demilitarized zone, as defined in paragraph 62 of the present Order, and refrain from any military presence within that zone and from any armed activity directed at that zone;

The order was criticised by a number of dissenting judges (President Owada, Judges Al Khasawneh, Xue, Donoghue & Judge ad hoc Cot) because the provisional demilitarized zone not only required the parties to withdraw from the territory in dispute but also from territory indisputably under their own sovereignty (see also post by Julian Ku at Opinio Juris). I will return to this point later.

However, the main thing I want to do is to highlight two developments that may not be easily noticed in the Court’s recent case law on provisional measures. The first of these developments is that the in the past couple of years the Court has actually introduced an additional requirement for the indication of provisional measure. The second is that the Court (in a return to earlier practice) is more prescriptive in indicating provisional measures than it has been at some points in its history.

The Relationship between Provisional Measures Orders and the Merits of the Case

Traditionally, there have been three conditions which must be fulfilled for the indication of provisional measures. First of all, there must be prima facie jurisdiction. Secondly, the measures requested must be related or linked to the claim or rights which form the subject matter of the main proceedings. Thirdly, the situation must be one of urgency, meaning that there must be a risk of irreparable prejudice to the rights at stake. Now the court has added, without much discussion, a fourth requirement that:

“the Court may exercise this power [to indicate provisional measures] only if it is satisfied that the rights asserted by a party are at least plausible” (Cambodia v. Thailand Provisional Measures order, para. 33)

This requirement was first added in the Obligation to Prosecute or Extradite case (Belgium v. Senegal) of 2009. What the Court is now saying is that there must be some relationship between success on the merits of the underlying claim and the indication of provisional measures. It is not enough just to claim rights and to show that the measures requested relate to the claim. The underlying claim itself must have some merit to it. Read the rest of this entry…

Filed under: EJIL Analysis, EJIL Reports

The Newly Independent State of South Sudan – Should We Rethink the Right to Secession?

Published on July 15, 2011        Author: 

It would be remiss of us not to note the birth of South Sudan as the world’s newest State. South Sudan gained independence from the Republic of Sudan last Saturday (9 July) and was admitted to the United Nations yesterday as the 193rd member of the UN. Independence was the result of a referendum held earlier this year in which 99% of the South Sudanese population voted for independence. South Sudan is the second African State (after Eritrea) to split from its parent state after such a referendum (which in both cases have followed a lenghty conflict).  Back in 1964, the Organization of African Unity adopted its famous resolution (see p. 17) in which it:

SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.

That resolution was often interpreted as prioritising the principle of stability of boundaries and of territorial integrity over the right of self determination. Indeed, it has often been used as an argument in favour of the view that the right of external self-determination (i.e a right to secession) does not exist for minority groups or outside the colonial context. On its face though that resolutions does not speak to relationship between the State and its constituent entities but rather to the relationship between States. Nothing in the resolution itself precludes the possibility of changes in those colonial boundaries (either through inter-State adjustments or through the granting of independence by States to particular parts of the State). Having said this, it is nonetheless clear, that the mood – in Africa and elsewhere – was largely to confine the principle of self determination – at least in so far as might confer a right or entitlement to secession – to the colonial or quasi colonial situations (i.e contexts of racist or alien domination). But Sudan (and indeed Eritrea before it) suggest that there might be cases where African states are willing to consider secession (though only when tired out by lenghty wars!). The question then is whether we should rethink the principle of external self determination to allow not just for the possibility of secession but a right  of secession. I would like to draw readers attention to two posts of earlier this year in which the authors do call for this. Read the rest of this entry…


Call for Applications: The vices and virtues of international constitutionalism

Published on July 11, 2011        Author: 

European University Institute, PhD Training School

A three-day doctoral training school shall be held at the European University Institute, Florence, on October 20-22, 2011, in context of COST Action 1003.

The topic of this training school will be “the vices and virtues of international constitutionalism”, and submissions are invited from PhD students working in areas related to this topic who are interested in debating the topic with fellow PhD students and with internationally recognised experts in the field of interntional constitutionalism. .

The doctoral training school is intended to bring PhD students from different European countries together on topics related to COST Action 1003, International Law between Constitutionalisation and Fragmentation: the role of law in the post-national constellation. (to be found at the Action website: ).  Support can be offered to PhD students from participating countries. Currently the following countries participate in the Action: Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Israel, the Netherlands, Norway, Poland, Portugal, Spain, United Kingdom, Former Yugoslav Republic of Macedonia, Hungary, Ireland, Sweden and the European Institute in Florence. Serbia, South Africa and Australia are currently applying for partnership.


Two recent tendencies have shaped recent discourses on international constitutionalism. On one side, the expansion of international law to areas never touched before has put into question the legitimacy and ability of international law in managing subjects that belonged previously to states. On the other side, international law is fragmenting into functionally separated regimes, challenging the unity and coherence of international law. Read the rest of this entry…

Filed under: Conference, EJIL Reports