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Trivia: Ad Hoc Judges in Agreement

Published on September 16, 2012        Author: 

Many international tribunals allow for States to appoint ad hoc judges in cases involving that State and where no national of the State is a judge on the Court. It is often said that these judges (and judges of the nationlity of parties)  vote in line with the State that has appointed them (or whose nationality they hold). This seems to be true in the majority of cases. However, it is worth nothing that (i) it is not true in all cases and (ii) in most cases the ad hoc judge votes together with the majority so it is perhaps not remarkable that they vote in favour of the appointing State.

However, this popular wisdom suggests that where there are two ad hoc judges appointed by opposing States in the case, the ad hoc judges will vote in opposite ways. This is probably true in the majority of cases, but it is not always true. This leads to my question:

In which cases before an international tribunal have ad hoc judges appointed by opposing States voted for the same result?

Obviously, I am including the International Court of Justice in the question but I would also include the International Tribunal for the Law of the Sea or any other tribunal in which opposing States can appoint ad hoc judges. I would also be prepared to accept as within the scope of my question cases in which an ad hoc judge appointed by one party voted for the same result as a judge of the nationality of the other party. Or even cases where judges that have the nationalities of opposing parties vote for the same result.

I realise that “voted for the same result” is a bit ambiguous. What I mean is that both ad hoc (or national) judges wanted the same outcome from the judgment. However, I don’t mean that both of them simply voted against the judgment because neither particularly liked it, though for different reasons. Also,  in cases where the tribunal’s dispositif may include several points, it is possible for ad hoc judges to agree on some of the minor points. What I really want to know is whether on core issues, the ad hoc judges have agreed.

I also have a follow up or bonus question:

Have ad hoc judges appointed by opposing States ever written a joint opinion with each other?

Read the rest of this entry…

 

European Court Decides Nada v. Switzerland

Published on September 14, 2012        Author: 

As announced, the Grand Chamber’s judgment in Nada v. Switzerland, no. 10593/08 is available here. I can’t blog about it more extensively as I’m in Valencia right now for the ESIL conference, but the gist of the judgment is as a follows:

1) The applicant wins, on relatively narrow grounds under Article 8, and more broadly under Article 13 of the Convention. When examining Article 8, the Court engages in its assessment of the relationship between the ECHR and state obligations under the UN Charter, specifically UNSC resolution, and the effect of the supremacy clause in Article 103 of the Charter.

2) In that regard, the Court quite correctly finds that while the applicant’s listing by the Sanctions Committee of the UNSC was attributable to the UN, the implementation of the sanctions by Switzerland was attributable to Swtizerland itself (para. 121). The Court then finds (para. 122) that:

The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.

Note that the Court here skirts the non-obvious question of the ECHR’s extraterritorial application (a point that as far as I am aware was not argued by the respondent government). That the implementation of the travel ban imposed against the applicant and Switzerland’s decision to deny him access to Swiss territory in order to leave the 1.6 sq km Italian enclave of Campione were undoubtedly attributable to Switzerland does not ipso facto entail that the applicant had rights vis-a-vis Switzerland under the Convention; the former is an issue of attribution of conduct, the latter of the threshold criterion for the existence of a legal obligation. The Court does not explain under what theory exactly the applicant had rights against Switzerland even though he does not live in Switzerland proper, nor how its position is to be squared with its prior case law on the matter (cf. Bankovic in particular, Al-Skeini notwithstanding).

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Venezuela denounces American Convention on Human Rights

Published on September 12, 2012        Author: 

The Bolivarian Republic of Venezuela has given notice of its intention to withdraw in a year’s time from the leading regional human rights treaty in the Americas, with the Secretary-General of the Organization of American States (OAS) having confirmed receipt of the notice of denunciation here: http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-307/12. (Rumours back in July had suggested that Venezuela was considering withdrawal.) The Inter-American Commission on Human Rights has also issued a press release announcing that Venezuela is withdrawing from the American Convention on Human Rights, with the denunciation to take effect in September 2013. The IACHR press release can be found here: http://www.oas.org/en/iachr/media_center/PReleases/2012/117.asp

The American Convention on Human Rights (also known as the Pact of San José, Costa Rica) was adopted in 1969 and entered into force in 1978. It is a key regional human rights instrument for the protection of civil and political rights within the Western Hemisphere (with the Convention working alongside the 1948 American Declaration of the Rights and Duties of Man which is relied upon for OAS states that are not Convention parties). Venezuela has been a party to the Convention since ratification in 1977. Venezuela has also recognized the competence of the Inter-American Court of Human Rights since 1981, with Venezuela’s record before the court found here: http://www.corteidh.or.cr/pais.cfm?id_Pais=13.

A broken (but soon to be fixed?) link to the text of Venezuela’s denunciation can be found here:  http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm#Venezuela. The Venezuelan Ministry of Foreign Affairs has posted an interview with the Minister here (in Spanish): http://www.mre.gov.ve/index.php?option=com_content&view=category&layout=blog&id=2&Itemid=325

This is not the first denunciation for the American Convention on Human Rights, with Trinidad and Tobago having denunciated in 1998 due to a stated need to address delays in death penalty cases as a result of the time taken before international human rights bodies. Venezuela is the second state to withdraw from the American Convention on Human Rights, notably at a time when the inter-American human rights system is undertaking consultations with respect to reforms (see earlier post).

Readers will also be aware that Venezuela is not a newcomer to denunciations, having earlier this year denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), becoming the third Latin American state to denounce the ICSID Convention (after Bolivia in 2007 and Ecuador in 2009). Under the terms of the ICSID Convention, which provides for a six-month notice period, Venezuela’s denunciation came into effect in July.

 
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Karlsruhe gives green light for German ESM ratification

Published on September 12, 2012        Author: 

On September 12, 2012, the German Constitutional Court dismissed several constitutional complaints that sought an injunction to prevent German ratification of the European Stability Mechanism (ESM) – a central pillar of the Eurozone’s crisis response – and the Fiscal Treaty in the preliminary phase of the proceedings (extracts in English). A full ruling is expected in a few months. German ratification is required for the ESM treaty to enter into force, and critical in financial terms for the ESM’s credibility. The Court’s preliminary ruling means that the last hurdle for the ESM to enter into force has now been cleared. German ratification should follow in the next few weeks.

The court conditioned German ratification on two reservations to the ESM treaty: first, the German capital subscription needs to be limited to 190 billion Euros, as provided by the ESM Treaty (though the ESM’s capital may be increased beyond this ceiling pursuant to the procedure forseen in Article 10 of the ESM Treaty); and second, notwithstanding the confidentiality of the ESM’s deliberations, the German Parliament needs to be fully informed about operations of the ESM.  The Bundesverfassungsgericht seized its one chance to foreclose two possible, but unlikely interpretations of the ESM Treaty that would conflict with the German Constitution before interpretative authority passes to the Court of Justice under the ESM Treaty.

The Court’s insistence on two reservations is only a small  “but”. The Court took issue with two aspects that are marginal to the firepower and effectiveness of the ESM. The decision has virtually no effect on how the ESM will operate, and in particular on the capital that the ESM will have its disposal. It could lengthen the German ratification process by a few weeks, but the Court’s decision has removed substantial  unertainty about the Eurozone crisis response. Most other Eurozone member countries, including France and Spain, have already ratified the treaty. According to Article 48 of the ESM Treaty, the Treaty enters into force once countries representing 90 percent of capital subscriptions have ratified. The German share in of the total capital subscriptions of 700 billion Euros is just over 27 percent.

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Diplomatic Asylum for Julian Assange?

Published on September 11, 2012        Author: 

Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany (since May 2003) and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Julian Assange’s medal-worthy self-staging as a militant for worldwide freedom of opinion has diverted attention away from the fact that the dispute over his extradition has nothing to do with Wikileaks, but rather with the enforcement of a European arrest warrant from November 2010. In this arrest warrant Assange is charged with rape, sexual harassment and unlawful coercion against two Swedish women in Sweden. According to the fundamental principle of mutual recognition as basis of the European arrest warrant, such a warrant is to be enforced by the executing member state (in this case Great Britain) without any further ado. The fact that Assange was however able to go through three  tiers of the English judicial system – with the proceedings leading up to the Supreme Court Decision of 30 May 2012 lasting one and a half years – can be explained, among other things, by the fact that the implementation of the European arrest warrant within the member states varies greatly.

Against this background – exhaustion of the local legal remedies – Assange’s escape into the Ecuadorian embassy on 19 June 2012 is to be seen as the continuation of his fight with political means. Hence, it is not very surprising that in the detailed explanation given by the Ecuadorian Ministry of Foreign Affairs (on 16 August 2012 ) for the granting of diplomatic asylum no mention is made of the actual accusations against Assange (see Comunicado No. 042). Instead, President Rafael Correa on 18 August 2012 in his state-owned TV program declared that the conduct Assange is accused of was not even punishable in Latin America (see Enlace Ciudadano No. 285). If this were to be true (which is fortunately not the case, see Art. 505 et seq. of Ecuador’s own Criminal Code), it would catapult the continent back to the unbridled machismo era. In any case, Ecuador granted Assange diplomatic asylum because it considered that there was an imminent threat of him being further deported to the United States where he would be politically persecuted and cruelly treated (see Comunicado No. 042).

However, Ecuador’s decision to grant diplomatic asylum to Julian Assange is flawed as a matter of law. Nonetheless, its embassy in London remains inviolable. The Ecuadorian argument does not stand up in the light of sober legal analysis as it misreads the fundamental structure of (European) law of extradition and it employs a legal concept – “diplomatic asylum” -that is not universally recognized in international law (see this EJIL:Talk! post ). An automatic further extradition to a third state is neither possible in general extradition law nor in the European arrest warrant system. Read the rest of this entry…

 

Cases in Which the ICJ/PCIJ Were Evenly Split

Published on September 10, 2012        Author: 

When I supplied an answer to my earlier trivia question on the ICJ case in which every judge appended an individual opinion, I asked a further question

In which other judgment (or opinion) has the ICJ or PCIJ been evenly split?

Remy was really quick off the mark in supplying the correct answers and identified that there had been two ICJ cases and one PCIJ case where the Court had been evenly split and the case was decided by the President’s casting vote.  In the ICJ era,  the  Nuclear Weapons Advisory Opinion (which was the answer to my first question) was the second case. The first was the very controversial decision of the ICJ in the South West Africa Cases (Ethiopia & Liberia v. South Africa), which was decided by the casting vote of Sir Percy Spender. In those cases, the ICJ held that Ethiopia and Liberia “cannot be considered to have established any legal right or  interest appertaining to them in the subject-matter of the present claims” – which concerned the observance by South Africa of its obligations under the Mandate for South West Africa (now Namibia).

This ripple effects of this decision were felt was for many years and in many ways – both institutionally and even in term of normative development of the law. African States turned away from the Court, in the 1970s and 80s,  largely as a result of this decision. Perhaps the International Tribunal for the Law of the Sea might not have been created had developing countries not been so dissatisfied with the ICJ. Sir Percy Spender was not re-elected to the Court and no Australian has been elected since (expect that to change soon!). Perhaps more importantly, the Court, in the Barcelona Traction case included the famous obiter dictum on the notion of erga omnes obligations. That dictum that was somewhat out of place in that decision. Perhaps, the Court included it as a way of overruling the decision in the South West Africa cases, implicitly. Just this year we have seen the first actual application of the erga omnes doctrine by the court in the Habre case (on which this earlier post by Joanna Harrington). A decision which shows how far we have come from the South West Africa cases

As Remy, Tamas and Thomas point out, the PCIJ was also evenly split in the Lotus Case [UPDATE: I forgot to mention that Daniel Wisehart also got it right. Apologies to him]. In that case, we had the “dissenting” judgment of 6 judges in which they rejected the passive personality principle (or “principle of protection” as they called it). The Corfu Channel Case (the ICJ’s first contentious case) was also mentioned but I don’t think the Court was evenly split at any stage of that case.

 

SIEL/CUP International Economic Law Essay Prize

Published on September 10, 2012        Author: 

The deadline for the Society of International Economic Law (SIEL)/Cambridge University Press’ 2012 International Economic Law Essay competition is fast approaching. That deadline is 30 September. The SIEL and CUP award a prize for the best essay submitted on any topic in any field of international economic law. For clarification, essays with a focus on international commercial arbitration or EU law will not be considered for this Prize.

The competition is open to all current undergraduate and graduate students of any university or other tertiary education institution, and those who have graduated from a university or other tertiary education institution no earlier than five years before the submission deadline. Members of the SIEL Executive Council may not submit entries. The essay must not have been previously published.

The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the  World Trade Review. The winning essay will be submitted to the World Trade Review for publication. Publication of the essay in the World Trade Review will be subject to the WTR’s normal review and decision procedure, but the WTR Editorial Board commits to expediting consideration with a view to early publication.

The prize will be awarded by the SIEL Executive Council on the recommendation of a Prize Committee drawn from its members and the Editorial Board of the World Trade Review. Decisions of the Prize Committee on the winning essay and on any conditions relating to this prize are final and no correspondence will be entered into.

Further information about the competition is available at the website of SIEL. Any queries should be addressed by email to Dr Lorand Bartels, University of Cambridge (lab53 {at} cam.ac(.)uk).

 

Filed under: EJIL Analysis
 
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Trivia: NO Individual Opinions by Judges at the International Court of Justice – UPDATED

Published on September 9, 2012        Author: 

Following my previous question on the ICJ case in which every judge has written an individual opinion, I have a question dealing with the opposite phenomenon:

In which International Court of Justice case or advisory proceedings have none of the judges involved in the case, appended an individual (or joint) opinion to a judgment or opinion of the Court?

In other words, in the case(s) or proceedings in question, there was only a single judgment – the Judgment of the Court. No judge wrote a separate opinion, a dissenting opinion or a declaration? Just to be clear, I am asking only about individual or joint opinions appended to judgments by the Court. By judgment, I mean a judgment either on the merits or on a preliminary objection regarding jurisdition or admissibility. I also include advisory opinions.  I exclude from the question orders on provisional measures or other procedural orders.It is quite common for there to be no individual opinions appended to orders on procedural matters. However, it is rare for the judges to be so restrained when it comes to judgments. Usually, one or more of them wishes to point out something that the Court’s judgment has not said or that they disagree with.

UPDATE: The answer I was looking for was indeed the Maritime Delimitation in the Black Sea (Romania v Ukraine) case (2009), which as far I know is the only “judgment” (in the sense used above) of the International Court of Justice which was not only reached unanimously but where no judge appended a separate opinion, dissenting opinion or declaration. Congratulations to Tamás Hoffmann.

But congratulations also to Daniel Wisehart who points out that there are several PCIJ cases that also fit this description. I have to confess I hadn’t looked into the PCIJ practice on this point. There was one case by the 3 judge Chamber of Special Procedure (which has not been used in the ICJ era) (see his comment below) relating to interpretation of a judgment – which does count as it is a case on the merits of that particular question. Daniel then goes on to make the make the point that between 1922 and 1930 there were several advisory opinions of the PCIJ (all reported in the PCIJ Series B) where no judge appended an individual opinion. In fact, the dominant practice in this period was to have the opinion of the Court without any individual opinions. However, this changed after 1930. From that point on, we see no more cases/opinions (reported in PCIJ Series A/B) without individual opinions or declarations. Daniel then says:

“What could be the reason for this. I would spontaneously guess that there could be two possible explanations. First, maybe the advisory opinions in the twenties were less politicized then today. This means they were really asked in order to get a legal answer – as it is done in France where the Conseil d’État advises the government on legal issues. Second, maybe the ”continental” background of judges in the Court made them more reluctant to append any declaration, since this practice derives from the common law system they were just not so familiar with it and did not want to weaken the authority of the Court. But this still would not explain why there was a shift in the thirties What do you think?”

A very interesting question indeed! Any answers by readers? Tamas had made some suggestions. Any other ideas? Read the rest of this entry…

 

Update on State Immunity

Published on September 7, 2012        Author: 

For those interested in recent developments in domestic state immunity acts, see earlier posts here and here, Canada has now announced that Iran will be formally listed as a state sponsor of terrorism. Canada has closed its embassy in Iran and declared personae non gratae all remaining Iranian diplomats in Canada. The news release from the Canadian Department of Foreign Affairs and International Trade (DFAIT) can be found here. Earlier attempts to sue Iran in Canada’s courts can be found herehere and here.

Update: In a separate news release, now available here, Canada has announced that it is listing Syria and Iran as state supporters of terrorism.

 

 

Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

Published on September 6, 2012        Author: 

In February 2012, the Israeli government appointed a commission, headed by former Supreme Court Justice Levy, to “examine the status of building in Judea and Samaria”—in other words, to examine the legality of settlements, whether authorised by the Israeli government or not, in the West Bank.  On 9 July 2012, the Commission’s report was released.  The report is in Hebrew, but its conclusions and recommendations have been translated into English by one of the Commission’s members, Alan Baker, and an unofficial translation of its arguments regarding international law has been published on a pro-Israeli US blog.

The reasoning of the Report, such as there is, is a travesty of legal argumentation.  It is selective in the issues it chooses to address, and perverse in its interpretation of international law. The arguments employed with regard to the status of the West Bank and legality of the Israeli settlements there are not novel.  Indeed, they are well-worn, tired, and have been thoroughly discredited in the past.  They contradict established legal opinion, both international and Israeli.

The Commission’s conclusions fall into two categories, one dealing with international law and the other with domestic Israeli law.  The Report states:

“Our basic conclusion is that from the point of view of international law, the classical laws of “occupation” as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria [ie, the West Bank] spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International Law, Israelis have the legal right to settle in Judea and Samaria and establishment of settlements cannot, in and of itself, be considered to be illegal.”

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