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EJIL: Editor-in-Chief Sarah M. H. Nouwen

Published on July 19, 2019        Author: 

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We are very pleased to announce that, as of this issue, the EJIL family (EJIL, EJIL: Talk! and EJIL: Live!) will be led by two Editors-in-Chief. By unanimous decision of EJIL‘s Board of Management, Sarah Nouwen will join J.H.H. Weiler at the helm of EJIL. Dr Nouwen serves as Senior Lecturer at the University of Cambridge and was recently appointed as Professor of International Law at the European University Institute. She has been a member of EJIL‘s Editorial Board for several years.

 
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The International Court of Justice renders its judgment in the Jadhav case (India v. Pakistan)

Published on July 18, 2019        Author: 

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On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR) (p. 4). The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried and sentenced to death by a military court in Pakistan.

In this post, I will give a brief overview of the background of the case and the claims submitted by India, followed by the provisional measures decision and the judgment on jurisdiction, admissibility and merits, pronounced in open court on 17 July 2019.

Application instituting proceedings

In its Application, India claimed that, on 3 March 2016, Mr. Jadhav was ‘kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan’ (para. 13) on suspicion of espionage and sabotage activities.  India stated that it was not informed of Mr. Jadhav’s detention until 22 days after his arrest and Pakistan failed to inform Mr. Jadhav of his rights under the VCCR. Allegedly, the Pakistani authorities refused to give India consular access to Mr. Jadhav, despite repeated requests. Read the rest of this entry…

 

Silence and the Use of Force in International Law

Published on July 18, 2019        Author: , and

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States frequently take actions and make statements that implicate international law. But because they do not — and, indeed, could not — express a view on each such act or statement by all other states at all times, silence seems to be the norm, rather than the exception, in international relations.

When states and other international actors do not express their views on a particular incident, issue or statement that implicates international law, what is the legal significance, if any, of their silence? Does it denote acquiescence or quiet protest? Might it not have legal significance at all? Who makes this determination? Who benefits, and who loses, from a finding that a particular silence does or does not yield legal consequences?

Over the years, several scholars — despite some calls for caution — have invoked the silence of states and other international actors as proof of support for particular legal views. This practice has been noticeable and increasingly frequent in jus ad bellum — the field of international law governing the threat or use of force in international relations. For example, writings on the following military actions (among others) invoke silence as having some type of legal significance: Read the rest of this entry…

 

A Reply to Professor Kraska on the Iranian Shootdown of the US Global Hawk Drone

Published on July 17, 2019        Author: 

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Prof. Kraska has argued in his latest EJIL: Talk! article that the incident regarding the downing of a US drone by Iran happened due to the scarce knowledge of international law by an Iranian Revolutionary Guard Corps (IRGC) commander. While I do appreciate Prof. Kraska’s discretion in referring to US intelligence sources, on the other hand the US President himself openly provided to the media the same assessment.

I will now concentrate on some points raised by Prof. Kraska:

  1. The US counterattack was cancelled.

This observation implies by default and without any specifics that the action conducted by Iran was in fact an attack confirming the US policy on the equivalence of  use of force with armed attack. One might disagree and follow the difference between the two as expressed by the ICJ in the Nicaragua case (para. 191). It is also difficult to understand this point of view, as the author did not state from the beginning that he was taking the US declarations on the position of the drone as a given fact. Even so, Iran’s declarations to the UN Security Council (UNSC) would have been worth mentioning to the reader for awareness purposes. In his letter, the Iranian Ambassador defines the US violation of his Country’s airspace as a “hostile act” to which Iran responded in self-defense. This is a shift on the interpretation of self-defense by Iran that actually aligns with the US view (use of force = self-defense). For more insights on the topic see here. Read the rest of this entry…

Filed under: Iran, Use of Force
 

Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

Published on July 16, 2019        Author:  and

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The International Law Commission (ILC) during its current 71st session has provisionally adopted, on first reading, the Draft principles on the protection of the environment in relation to armed conflict. The first-reading text had taken five years to prepare, under the successive leaderships of Special Rapporteurs Ms. Marie G. Jacobsson (2013 – 2016), and Ms Marja Letho (2017-2019). The last report of Special Rapporteur Letho (2019) completed the work on this topic, focusing in particular on the question of environmental stresses related to non-international armed conflicts (NIACs). This blog post deals first with certain general issues as to the scope and form of the draft principles, and then discusses whether the draft principles are sufficiently responsive in the context of NIACs.

Scope and methodology of the topic

With respect to the ratione temporis of the draft principles, the ILC employed a temporal approach by drafting provisions structured according to three phases of an armed conflict: before (preventive measures, but also principles of a more general nature of relevance to all three temporal phases), during (the conduct of an armed conflict) or after (post-conflict measures in relation to environmental damage) an armed conflict. The rationale of the topic was to address the law of armed conflict but also other areas of international law. The scope of the topic (peacetime and wartime obligations) inevitably influenced the outcome, which led the ILC to adopt “principles” at a more general level of abstraction, albeit with different normative values, from recommendations to fully binding rules. Read the rest of this entry…

Filed under: Armed Conflict, Use of Force
 

The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 

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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

 

Why Arbitrate Business and Human Rights Disputes? Public Consultation Period Open for the Draft Hague Rules on Business and Human Rights Arbitration

Published on July 12, 2019        Author: 

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In June 2019, the Draft Hague Rules on Business and Human Rights Arbitration (hereafter, “Draft BHR Arbitration Rules”) was released for global online public consultation, with the consultation period set to end by 25 August 2019.  Judge Bruno Simma chairs the global Drafting Team that has collaborated in developing the draft rules, since the Drafting Team started its work in January 2018 with the support of the City of the Hague.  (Drafting Team Members and Working Group Members all listed here.) The final version of the Hague Rules on Business and Human Rights Arbitration will be published on 10 December 2019.  Before the release of the Draft BHR Arbitration Rules, the Working Group had produced a 2017 concept paper on business and human rights arbitration.  This was followed by the creation and first meetings of the Drafting Team in January 2018; the Drafting Team’s production of its Elements for Consideration in Draft Rules, Model Clauses, and Other Aspects of the Arbitral Process in time for the November 2018 Online Consultation Procedure; the April 2019 meetings of the Drafting Team and the June 2019 publication of the Summary of the Sounding Board Consultationsup to the June 2019 release of the Draft BHR Arbitration Rules.  

As described in the Draft BHR Arbitration Rules:

“The Hague Rules on Business and Human Rights Arbitration provide a set of procedures for the arbitration of disputes related to the impact of business activities on human rights.  The Hague Rules are based on the UNCITRAL Arbitration Rules, with modifications needed to address certain issues likely to arise in business and human rights disputes.  As with the UNCITRAL Arbitration Rules, the scope of the Hague Rules is not limited by the type of claimant(s) or respondent(s) or the type of subject-matter of the dispute and extends to any disputes that the parties to an arbitration agreement have agreed to resolve by arbitration under the Hague Rules.  Parties could thus include business entities, individuals, labor unions and organizations, States and State entities and civil society organizations. Equally, the Hague Rules purposefully do not define the terms “business”, “human rights”, or “business and human rights.” For the purposes of the Hague Rules, such terms should be thus understood at least as broadly as the meaning such terms have under the UN Guiding Principles on Business and Human Rights. However, in the vast majority of cases, no definition of these terms should be necessary at all.

Like the UNCITRAL Rules, the Hague Rules do not address the modalities by which the parties to the arbitration may consent to it nor the content of that consent, which are matters for the parties. Consent remains the cornerstone of business and human rights arbitration, as with all arbitration, and it can be established before a dispute arises, e.g. in contractual clauses, or after a dispute arises, e.g. in a submission agreement (compromis). Model Clauses may provide potential parties with options for expressing their consent to arbitration. In addition, like the UNCITRAL Rules, the Hague Rules do not address enforcement of arbitral awards made under these Rules, which are governed by national law and various treaty obligations, including in most cases the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. While these Rules have been conceived as a uniform set of rules, we acknowledge that the parties remain entitled to exercise their discretion in opting out of certain provisions that do not respond to their specific needs as arising out the dispute at issue. Certain other Model Clauses are being developed in this respect.” (Emphasis added.)

I have served in the Drafting Team under Judge Simma’s leadership since January 2018. My colleagues Martin Doe, Steve Ratner, and Katerina Yiannibas have helpfully crystallized elsewhere several of the main points of innovation contained in the Draft Rules, such as:

“1. provisions on facilitating settlement and mediation, and emphasizing the complementarity of arbitration to such procedures as the OECD National Contact Points system (Articles 1(6), 17(3), 42, and 51)

2. provisions to address the inequality of arms which may arise in such disputes (inter alia, Articles 5(2), 20(4), 24, 27(2), and 27(4));

3. the establishment of the Permanent Court of Arbitration as the default appointing authority, given its intergovernmental nature and experience in business and human rights disputes (Article 6);

4. procedures for multiparty claims and joinder by third parties (Article 17-bis);

5. a procedure for the early dismissal of claims manifestly without merit, developed on the basis of similar procedures in the ICSID, SIAC, SCC, and HKIAC Rules (as well as the proposed new ICSID Rules) (Article 23-bis);

6. provisions making the arbitral tribunal’s power over interim measures more robust, and at the same time more flexible (Article 26);

7. an emergency arbitrator mechanism elaborated on the basis of the ICC and SCC Rules (Article 26-bis);

8. specialized evidentiary procedures drawn up on the basis, inter alia, of the IBA Rules and Rules of the International Criminal Court, among others (Articles 27, 28, and 30(3));

9. measures to protect the identity of parties, counsel, and witnesses where such protections are warranted by the circumstances of the case, while ensuring due process is maintained for all parties (Articles 17(5), 28(3), and 37(5));

10. provisions on transparency and third-party participation (Articles 24-bis and 33-38);

11. tailored provisions on remedies in the business and human rights context (Article 40);

12. rules on applicable law that enhance flexibility and party autonomy (Article 41);

13. rules to protect the public interest in the case of confidential settlements (Article 42(1));

14. nuanced rules in respect of costs and deposits that encourage the tribunal to sensitive to the interests of access to justice (Articles 46-49);

15. an expedited arbitration procedure for small claims (Article 52); and

16. a Code of Conduct that reflects the highest standards for independence and impartiality in international dispute resolution (Annex).”

In this post, I do not aim to provide an authoritative commentary on the Draft Rules (which is exactly what our global online consultation procedure is for).  Rather, and notwithstanding the explicit caveat drawn by the Drafting Team above on leaving the modalities and content of consent to arbitration to the parties, I instead offer my personal observations to examine the essence of main criticisms (see public comments of the Columbia Center for Sustainable Investment here as well as a few questions and comments I received at Harvard Law School in April 2019), directed against having the BHR Arbitration Rules in the first place: 1) whether companies and human rights victims would even consent to arbitration; and 2) if they do consent, whether one should view that consent with skepticism as to the authenticity of arbitration as a mode of access to justice for human rights victims.  The gist of my argument is this: while the BHR Arbitration Rules will never purport to be the exclusively prescribed mechanism for human rights victims of transnational business conduct and neither does it presume to displace State-based judicial or non-judicial remedies, against the realities of a continuing limited universe of legally binding human rights recourse against the impacts of private transnational activities, we cannot afford to close off the arbitral option either. As human rights practitioners well know, no single dispute resolution mechanism for human rights disputes against transnational business is perfect, and even recent national court victories in Lungowe v. Vedanta (as spearheaded by my BHR Drafting Team colleague Richard Meeran of Leigh Day) depend on the jurisdictional openness of a State’s judicial system to transnational tort claims.  The question, in my view, thus has to be reframed away from “why international arbitration?“, to “why not also international arbitration?“.

Read the rest of this entry…

 

Deep Seabed Mining in the Area: is international investment law relevant?

Published on July 10, 2019        Author: 

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The last decade has seen a renewed interest in the commercial exploitation of deep seabed minerals located beyond national jurisdiction. However, the respective responsibilities of deep sea miners and of their sponsoring states in this process have not been clarified fully. This short piece argues that international investment law is part of the legal framework applicable to the relationship between the deep sea miner and the state sponsoring it. More specifically, it attempts to demonstrate that deep sea mining operations can constitute a foreign-owned investment within the territory of a host state. Thus, when accepting to sponsor deep sea mining activities, states need to be mindful of the additional disciplines imposed by international investment law. 

The seabed beyond national jurisdiction (named as the “Area” by UNCLOS) is known to contain valuable mineral resources including copper, nickel, zinc and rare earth metals which have become particularly valuable because of recent technological innovations. The International Seabed Authority has awarded twenty-nine exploration contracts to a variety of state and private corporate bodies for vast zones in the Pacific and Indian Oceans. Foreign capital has become increasingly involved in this economic activity. Thus, Nauru Ocean Resources, a Nauruan entity which was granted an exploration contract in 2011, is a subsidiary of the Australian corporation Deepgreen Mineral Corp. UK Seabed Mineral Resources is a subsidiary of the well-known Lockheed Martin. However these activities are controversial and there exist glaring gaps in the scientific knowledge of the ecosystems where deep sea mining is supposed to take place. Read the rest of this entry…

 

Sovereignty has “Rock-all” to do with it… or has it? What’s at stake in the recent diplomatic spat between Scotland and Ireland?

Published on July 8, 2019        Author: 

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Rockall, the tiny, remote, rocky outcrop in the northeast Atlantic – a ghostly peak of an extinct volcano – has periodically appeared in the news at the centre of a longstanding dispute between the UK and Ireland (as well as, more peripherally, Denmark (Faroe Islands) and Iceland too). This dispute has rarely flared up publicly over recent years, as it has largely been subsumed as part of ongoing, unresolved negotiations surrounding extended continental shelf claims of the four states concerned. However, earlier this month, the Scottish government threatened enforcement action against Irish vessels which it claimed were illegally fishing within Scottish territorial waters surrounding Rockall. Ireland immediately responded to this threat by denying Scotland’s right to take any such action. It seemingly based its position on (i) a rejection of UK sovereignty over the islet and, (ii) the argument that such sovereignty (even if it existed) over uninhabited ‘rocks’ like Rockall was irrelevant for the UK’s claimed maritime entitlement. Although any enforcement action has yet to take place, the underlying diplomatic feud appears not to be going away any time soon. Indeed, following a meeting on Friday 28 June between the Irish Prime Minister (the Taoiseach) and Scottish First Minister, there has been an agreement to intensify discussions in light of the diplomatic impasse.

The Scottish position is perhaps explicable in a pre-Brexit (and pro-independence) political climate, where sovereign rights over natural resources will play a critical part – a theme I briefly return to at the end of this post. However, Ireland’s counterargument appears to be built on a misapprehension of the applicable law, both over territory and associated maritime rights. The real issue would appear to lie in the permissibility of fishing – including potentially acquired customary rights to do so – in the context of EU Common Fisheries Policy rules. In this short post I want to clarify the legal position on sovereignty and associated maritime rights, before turning to the arguably more complicated issue of fishing rights specifically. Before doing so, for those not already familiar, a brief introduction to Rockall is necessary. Read the rest of this entry…

 

Announcements: CfP German Yearbook of International Law; Rosalyn Higgins Prize

Published on July 7, 2019        Author: 

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1. Call for Papers, Volume 62 (2019) German Yearbook of International Law (GYIL) – Reminder. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing all aspects of public international law. The Editors are pleased to call for contributions to the “General Articles” section of Volume 62 (2019) of the GYIL. Prior to publication, all manuscripts are independently peer-reviewed by a board of renowned experts. Submissions from all areas of public international law are welcome. The paper should be 10,000-12,500 words, inclusive of footnotes, and conform with the house style of the GYIL (which is available on our website). Submissions, including a brief abstract, statement of affiliation, and confirmation of exclusive submission, should be sent by 1 September 2019 to the Assistant Editor of the GYIL via e-mail: yearbook {at} wsi.uni-kiel(.)de.

2. Rosalyn Higgins Prize – Reminder. The Law & Practice of International Courts and Tribunals now invites submissions for the Rosalyn Higgins Prize. In light of her outstanding and inspiring achievements in the field of international dispute settlement, the Law & Practice of International Courts and Tribunals (LPICT) has named a Prize in honour of H.E. Rosalyn Higgins. The Rosalyn Higgins Prize is an annual prize which awards EUR 1.000 of Brill book vouchers and a LPICT subscription to the author of the best article on the law and practice of the International Court of Justice, either solely focusing on the ICJ or with the ICJ as one of the dispute settlement mechanisms under consideration. The winning article will also be published in LPICT and made freely available online to maximize its dissemination. Competition for the Prize is open to all. Submissions will be selected via a double-blind peer review process by a Prize Committee. Submissions should be between 6.500 and 8.000 words in length, not yet published or under review elsewhere. Other submission requirements are the same as for regular LPICT submissions (instructions available here). Submissions now open! Deadline: 31 August 2019. All papers for consideration of the 2019 prize should be sent directly to Pierre Bodeau-Livinec (bodeaulivinec {at} gmail(.)com ) and Freya Baetens (freya.baetens {at} jus.uio(.)no), LPICT Co-Editors-in-Chief. The winner(s) will be announced in September 2019.

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