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Access to Remedy Under the UNGPs: Vedanta and the Expansion of Parent Company Liability

Published on October 31, 2017        Author: 
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On Friday, 13 October 2017 the UK Court of Appeal handed down its long anticipated decision in Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (“Vedanta”). The appeal was brought by UK-based Vedanta Resources Plc (“Vedanta Resources”) and its Zambian subsidiary Konkola Copper Mines (“KCM”), against a decision dismissing certain jurisdictional challenges brought by each of Vedanta Resources and KCM.

The underlying claim was brought by a group of Zambian Villagers alleging that harmful effluent from the appellants’ Zambian copper mining operations had been discharged into the local environment, including waterways that were of critical importance to the livelihood of the claimants, and to their physical, economic and social wellbeing. Rejecting the appeal, the Court of Appeal found that the claim could proceed against the appellants in the UK.

The Vedanta litigation is a critical avenue for the claimants to pursue effective remedy as envisioned by the UN Guiding Principles on Business and Human Rights (“UNGPs”) and represents a significant development in the emerging doctrine of parent liability. Read the rest of this entry…

 

Myanmar’s Rohingya Crisis and the Need for a Regional Response to Statelessness in Southeast Asia

Published on October 30, 2017        Author: 
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Over the past two months, about half a million Rohingya people have fled from Myanmar (Burma) to neighboring Bangladesh. The immediate trigger for this mass exodus was a crackdown by Myanmar’s security forces against Rohingya insurgents and civilians, which reportedly included widespread torture, rape, and killing. However, the roots of this conflict lie far in the past.

The Rohingya are a Muslim ethnic minority based in the western part of predominantly Buddhist Myanmar. Since the establishment of Myanmar in 1948, Rohingya leaders have made separatist claims, at times accompanied by a violent struggle by some insurgent groups. The government, on its part, has denied Burmese citizenship to the Rohingya people and refused to include them among the country’s 135 officially recognized ethnic groups. The government asserts that the Rohingya are illegal migrants from Bangladesh, whereas the Rohingya consider themselves to be indigenous people of western Myanmar. Neither Bangladesh nor any other country has been willing to grant citizenship to Myanmar’s Rohingya, and the vast majority of the group’s one million members have thus remained stateless.    

As a stateless minority, the Rohingya have suffered severe discrimination in Myanmar. They have been denied the right to participate in elections and have faced severe restrictions on movement, land ownership, family life, religious freedom, education, and employment. They have also been persecuted by extremist Buddhist groups without government interference. During the last decades, this reality has pushed tens of thousands of Rohingya to seek asylum in neighboring countries. The present crisis thus marks the culmination of the longstanding persecution of this stateless minority.

In this contribution, I argue that the adoption of a more effective regional response to the problem of statelessness is essential in order to ameliorate the plight of the Rohingya and other stateless groups in Southeast Asia. I begin by providing a brief factual background on statelessness in Southeast Asia. I then describe the existing international legal framework on statelessness, noting the limited impact that it has had in Southeast Asia. Finally, I present the justifications for adopting a new Southeast Asian regional approach to statelessness, and discuss the role that the Association of Southeast Asian Nations (ASEAN) should play in this respect. Read the rest of this entry…

 

Announcements: Crisis of International Criminal Law in Africa Seminar; Neglected Methodologies of International Law Workshop

Published on October 29, 2017        Author: 
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Modern Law Review Seminar: ‘The Crisis of International Criminal Law in Africa’. This joint conference between University of Leicester and University of Johannesburg will take place on 7 November 2017, 8.45 am-5 pm (UK time) in the Haldane Room, Fielding Johnson Building, University of Leicester, UK, and Faculty of Law, University of Johannesburg, South Africa (both venues will be linked by Skype). Confirmed speakers include Judge Morrison, International Criminal Court (ICC), Sarah Swart, International Committee of the Red Cross (ICRC), and members of the International Law and Policy in Africa Network (ILPAN). For further information, see here. The contact for bookings or further enquiries is eyo1 {at} le.ac(.)uk.

Workshop on ‘The Neglected Methodologies of International Law – Empirical, Socio-Legal and Comparative’. This workshop is being held at the University of Leicester on 31 January 2018. Methodologies of international law remain predominantly doctrinal. However, new approaches to international legal research are emerging. We welcome submissions that engage with innovative, non-dogmatic approaches to the study of international law – either in the form of theoretical analysis or case studies. The  full call for abstracts can be found here.
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A Footnote on Secession

Published on October 26, 2017        Author: 
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We have had a very rich debate on secession on the blog in recent weeks, and we will have more posts to follow. For my part, I would agree with much of what Jure Vidmar has said in his post this week, with the proviso that I personally don’t think the argument out of comparative constitutionalism necessarily has much purchase – that argument is contextually specific, and what works constitutionally in Canada or in the UK need not be the position in Spain. The ultimate arbiter of the Spanish constitutional order – the Constitutional Tribunal – has (for good or ill) not gone the Quebec Reference path. I agree in particular that international law has little to say on the secession of Catalonia specifically; Kurdistan is a more difficult question (on which a bit more below). What I would like to do in this post, however, is take a step back and reflect more generally on how secession is regulated by international law – and it is indeed regulated, if not wholly so.

It seems to me most useful to conceptualize international law’s regulation of secession in a three part model. First, there are cases where international law explicitly prohibits secession, when it is being effected through the violation of some fundamental norm of international law, such as the prohibition on the use of force or the prohibition on racial discrimination – this was the case, for example, with the Turkish Republic of Northern Cyprus. Such fundamental illegality is an impediment to the achievement of statehood which otherwise satisfies the relevant factual criteria, and thus bounds effectiveness. Crucially, as the ICJ has confirmed in the Kosovo AO, among these norms is NOT the principle of territorial integrity insofar as it does not govern the relationship between the parent state and an internal secessionist movement; that principle is only relevant if a third state assists a secessionist entity, as with Turkey and the TRNC.

Second, there is a middle ground, a zone of tolerance, where international law is neutral towards secession, neither prohibiting it nor creating a right to it. This neutral zone is what is left over from the classical position towards secession in international law, which was essentially that in order to establish itself as a state against the wishes of its parent, the secessionist entity needed to fight – and win – a war of independence against its parent (e.g. the USA, or most of the states of Latin America).

Finally, in the third part, a zone of entitlement, international law creates a right to secession under external self-determination, or perhaps remedial secession. The argument of Serbia and most of its allies in the Kosovo advisory proceedings was essentially that no zone of tolerance existed between prohibition and entitlement; the argument of Kosovo and its supporters that international law at the very least tolerated the declaration of independence/secession. Serbia could also have argued that even if the territorial integrity principle did not generally prohibit non-state actors from declaring independence, it did so here because Kosovo’s independence was as a matter of fact enabled by an unlawful use of force contrary to the Charter by NATO in 1999. Serbia of course deliberately chose not to do so, and for three basic reasons: it did not want to antagonize the NATO powers, as this argument would inevitably do, the Resolution 1244 regime came after the initial use of force and authorized the presence of international forces in Kosovo, and it was highly unlikely that the Court would want to rule on it in the context of the advisory proceedings.

Read the rest of this entry…

 

Sir Elihu Lauterpacht: A Celebration of His Life and Work

Published on October 25, 2017        Author: 
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A memorial symposium celebrating the life and work of Sir Eli Lauterpacht was held at the Faculty of Law in Cambridge on Friday, October 13, 2017, followed the next day by a memorial service in the chapel of Trinity College, Cambridge.  Both were extremely well attended, with about 200 people at the symposium and more at the memorial service.  Trinity College chapel was packed, with the congregation over-spilling into the antechapel.  It was touching to see how many people had come from all over the globe to pay their respects.  A record of both the symposium and service will be created in due course on the Squire Law Library’s Eminent Scholars Archive.

Judge Christopher Greenwood and President Steven Schwebel delivered eulogies at the memorial service. Chris told me that it was the first time in years that he had written out a speech rather than just rely on notes. Eli’s youngest child, Conan ended his eulogy with one of Eli’s favourite jokes about the priest, the vicar, and the rabbi trying to convert a bear to their religion.  This was characteristic of both the symposium and service, which were affectionate and humorous, reflecting Eli’s personality and love of jokes.          

The organisers of the academic symposium which examined Eli’s professional life were clear: no–one who had been asked to talk had refused, and acceptances had been immediate. Read the rest of this entry…

 
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Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument

Published on October 24, 2017        Author: 
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On 10 October 2017, Catalonia issued and then immediately suspended its declaration of independence, and urged Spain to negotiate. Spain does not want to negotiate. Rather, it sought clarification as to whether or not Catalonia’s manoeuvre indeed was a declaration of independence. Such clarification was needed, according to Spain, in order to decide on an appropriate response. Subsequently, Spain announced its plan to remove certain political leaders of Catalonia and impose direct rule on the region. The recent situation in Catalonia has already been addressed on this blog (see here and here). What is striking – or perhaps not – is how little international law actually has to say on secession and indeed even on statehood. Statehood is quite simply a politically-created legal status under international law. Catalonia is yet another proof that statehood is a complicated nexus of law and politics which cannot be explained by legal rules alone. International law merely delineates the field for a political game. Just as studying football rules cannot tell us which team is going to win – Barcelona or Real – studying the law of statehood alone cannot tell us how states emerge. We need to see the game played within certain rules. In this post, I will explain the international legal framework that defines the rules of the political game and argue that the game itself may be much more influenced by comparative constitutional rather than international legal argument.

Unilateral secession between Kosovo para 81 and Quebec para 155

In the modern world, new states can only emerge at the expense of the territorial integrity of another state (see here for details). The emergence of a new state is then a political process of overcoming a counterclaim for territorial integrity. Sometimes states will waive such a claim – the United Kingdom was willing to do that with regard to Scotland. Where the parent state does not waive its claim to territorial integrity, an attempt at secession is unilateral.

The international law on unilateral secession is determined by the Kosovo Advisory Opinion para 81 and the Quebec case para 155. It follows from Kosovo para 81 that unilateral declarations of independence are not illegal per se, i.e. merely because they are unilateral, but illegality may be attached to them in situations similar to Northern Cyprus and Southern Rhodesia. This is not the case with Catalonia. Pursuant to Quebec para 155, the ultimate success of unilateral secession depends on recognition by other states. This pronouncement may sound somewhat problematic in light of international legal dogma that recognition must always be declaratory. Where independence follows from a domestic settlement (e.g. had Scotland voted for independence in 2014), recognition indeed plays little role. But the Supreme Court of Canada was quite right that recognition is much more instrumental – even constitutive – where a claim for independence is unilateral.

 

The Kosovo and Quebec doctrines lead us to the conclusion that where the Northern Cyprus or Southern Rhodesia type of illegality is not attached to a declaration of independence, the obligation to withhold recognition under Article 41 ARSIWA does not apply, and pursuant to Quebec para 155 foreign states may grant recognition, taking into account the legality and legitimacy of a claim for independence. This means that foreign states could recognise Catalonia, but they are under no obligation to do so. Read the rest of this entry…

 

The Limits of Diplomatic Immunity in the Age of Human Trafficking: The Supreme Court in Reyes v Al-Malki

Published on October 23, 2017        Author: 
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Disclaimer: The author was counsel to the Intervener, Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked. This post is written in the author’s personal academic capacity and does not necessarily represent the views of her client.

Last week the UK Supreme Court delivered judgments in two landmark cases on immunity. This post examines the Judgment in Reyes v Al-Malki on diplomatic immunity.

There is much of interest in the Reyes Judgment – the relationship between State and diplomatic immunities, approaches to treaty interpretation (including temporal dimensions), the appeal by Lord Wilson to the International Law Commission to take this issue forward (para 68), and the Court allowing a diplomat to be served by post to their private residence (para 16). I will focus on the approach to diplomatic immunity in the context of human trafficking.

The Court decided that Mr and Mrs Al-Malki, a former member of the diplomatic staff of the Saudi embassy in London and his wife, are not entitled to immunity from the claim brought against them by Ms Reyes, a Philippine national who was their domestic servant for two months in 2011. The appeal proceeded on the basis of assumed facts. Ms Reyes alleges that she had entered the UK with a contract showing that she would be paid £500 per month by Mr Al-Malki. Instead, she says she was paid nothing. She alleges she was made to work excessive hours, had her passport confiscated, did not have proper accommodation, and was prevented from leaving the house or communicating with others (para 1). She eventually escaped.

UK Visas and Immigration had found that there were reasonable grounds for concluding that Ms Reyes was a victim of human trafficking.

The Supreme Court decided on the basis of Article 39(2) of the Vienna Convention on Diplomatic Relations, which sets out the residual immunity enjoyed by diplomats who are no longer in post:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. (emphasis added)

The Judges unanimously held that the employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki ‘in the exercise of his functions as a member of the mission’ and he was therefore not immune.

Another provision of the Vienna Convention – Article 31(1)(c) – had formed the centrepiece of the parties’ arguments in the Court of Appeal and the Supreme Court. It sets out an exception to immunity for diplomats who are currently in post:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of : 

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (emphasis added)

Lord Sumption wrote the lead Opinion (with which Lord Neuberger agreed), disposing of the case on the basis of Article 39(2), but also analysing Article 31(1)(c) in depth. Lord Wilson agreed with Lord Sumption’s analysis of Article 39(2), but expressed ‘doubts’ regarding his interpretation of Article 31(1)(c), with Lady Hale and Lord Clarke sharing these ‘doubts’.

We thus have a straightforward, unanimous decision on the basis of Article 39(2) applicable to former diplomats, but we also have a split within the Court on the interpretation of Article 31(1)(c), with obiter ‘doubts’ on obiter reasoning. Read the rest of this entry…

 

Announcements: UN Audiovisual Library of International Law; ICON-S Book Prize; CfP GoJIL; CfS UCL Journal of Law and Jurisprudence

Published on October 22, 2017        Author: 
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1. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Ms. Laurence Burgorgue-Larsen – “Le système conventionnel européen des droits de l’homme” and “El sistema convencional europeo de los derechos humanos”.

2. First International Society for Public Law Book Prize (ICON-S Annual Meeting of June 2018 in Hong Kong). The International Society for Public Law (ICON-S) is pleased to announce the launch of the International Society for Public Law Book Prize. In line with the Society’s mission, the prize will be awarded to an outstanding book in the field of public law, understood as a field of knowledge that transcends dichotomies between the national and the international as well as between Constitutional Law and Administrative Law. Preference will be given to scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science. The first book prize will be awarded at the Society’s next annual meeting taking place on 25-27 June 2018 in Hong Kong to a book published in the two calendar years prior to the conference (2016-2017). The nomination process is open now! Members of the Executive Committee of the ICON-S and the Society’s Council, groups of at least three ICON-S members, book review editors of academic journals, as well as publishing houses are invited to nominate books. Proposals coming directly from authors will not be considered and edited books are not eligible for nominations. The deadline for the submission of nominations is 31 December 2017. Nominations can be made via e-mail, together with an up to 200 word justification of the proposal, to icons {at} icon-society(.)org (reference: Book Prize, attn. of the chairperson of the Book Prize Committee). Please consult the procedures for the ICON-S book prize on the webpage of the ICON-S for further information.

3. GoJIL Deadline Extension. In 2018, with Till Patrik Holterhus as special issue editor, the Goettingen Journal of International Law (GoJIL) will publish a special issue on “The law behind rule of law transfers”. Due to the many responses concerning this special call for papers, the deadline for the submission of paper abstracts has been extended to 29 October 2017. For further information see here.

4. Extended Deadline for Submissions: UCL Journal of Law and Jurisprudence Volume 7, Issue 1 (March 2018). The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to advise that the call for submissions for the first issue of 2018 has now been extended by 3 weeks, to 6 November 2017. Manuscripts must be uploaded via the submissions section on our website. The Board welcomes papers covering all areas of law and jurisprudence. For further information and guidelines for authors please see the original Call for Submissions, and visit our website.

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Part II: Analysis of Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean

Published on October 20, 2017        Author:  and
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An overview of the Ghana/Côte d’Ivoire judgment is provided in the first part of this post. The purpose of this second part is to highlight issues of practical significance which flow from the judgment.

In two important ways, the Ghana/Côte d’Ivoire judgment has demonstrated the functionality of dispute resolution processes under Part XV of UNCLOS, both in the context of maritime delimitation disputes and more generally.

Consistency with international delimitation jurisprudence

First, the ITLOS Special Chamber evidenced a desire to contribute to the development of consistent delimitation jurisprudence, and confirmed that the ‘equidistance/relevant circumstances method’ is now standard in a delimitation process – regardless of whether the coasts of claiming States parties are opposite or adjacent to one another. Importantly, it adhered to the three-step methodology identified and employed by the International Court of Justice (ICJ) in Black Sea. It did so by drawing a provisional equidistance line between the relevant coasts, considering the factors which might warrant adjustment of that line, and then applying an ex-post facto (dis)proportionality test to verify that the delimitation line was equitable. Notably, the Special Chamber maintained consistency with recent maritime delimitation jurisprudence by underscoring the primacy of criteria associated with coastal geography (concavity, coastal length, etc.) and ignoring factors related to offshore oil activities or the presence of seabed resources in the relevant area. Read the rest of this entry…