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The International Criminal Court Gets Jurisdiction Over the Crime of Aggression

Published on December 15, 2017        Author: 
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The Assembly of States Parties to the Statute of the International Criminal Court has, overnight (New York time), adopted a resolution which activates the jurisdiction of the Court over the crime of aggression. This was the culmination of intense negotiations at the ICC’s 16th ASP which has been meeting in New York over the past 2 weeks. Indeed, activation of the crime of aggression today brings to a close negotiations which have taken place over decades regarding the jurisdiction of the Court over that crime. States Parties agreed in Rome in 1998 to include the crime of aggression in the ICC Statute but suspended ICC jurisdiction over the crime until they could agree on a definition and conditions for the exercise of jurisdiction. This they did at the Kampala Review Conference in 2010 but again agreed to suspend jurisdiction over the crime until at least 30 States had ratified or accepted the amendments, and until a decision of the ASP to activate jurisdiction with that decision not to take place before 1 January 2017. So, activation of jurisdiction was the final step in a long journey and it was this momentous step taken by the ASP overnight.  The text of the resolution adopted, by consensus, is available here. By paragraph 1, the ASP

“Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018.”

This means the Court will be able to exercise jurisdiction over aggression 20 years, to the day, after the adoption of the ICC Statute in Rome in 1998.

The key issue that divided the parties leading up to the ASP and was whether the Court would be able to exercise jurisdiction with respect to the crime of aggression over the nationals of states parties to the Statute who have not ratified the aggression amendments and who also do not opt out. Many states, led by Liechtenstein, had taken the view that nationals of such states would be subject to the Court’s jurisdiction if they committed the crime of aggression on the territory of a state party that had ratified or accepted the Kampala Amendments (the wide view). However, another group of states, led by the UK, France, Japan, Canada, Norway, Colombia had taken a narrow view. They argued that in the case of state referrals or proprio motu investigations the Court would not have jurisdiction over aggression committed by nationals of non-ratifying states or on their territory. The competing arguments on this question were set out in previous posts by me (arguing for the narrow view) and by Stefan Bariga (arguing for the wide view). Ultimately, after very fraught negotiations on this issue, which extended well into the night and beyond the original time scheduled for completion of the ASP, the ASP adopted a resolution confirming the narrow view. Read the rest of this entry…

Filed under: EJIL Analysis
 

ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

Published on November 11, 2017        Author: 
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On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 13. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. Read the rest of this entry…

 

New Issue of EJIL (Vol. 28 (2017) No. 3) – Out Next Week

Published on November 6, 2017        Author: 
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The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

Those Who Live in Glass Houses …; In this Issue

Articles

Andrew D. Mitchell and James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

Gracia Marín Durán, Untangling the International Responsibility of the European Union and its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model

Sergio Puig and Anton Strezhnev, The David Effect and ISDS

Focus: Human Rights and the ECHR

Merris Amos, The Value of the European Court of Human Rights to the United Kingdom

Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights

Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights

Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee

Thomas Kleinlein, Consensus and Contestability: The European Court of Human Rights and the Combined Potential of European Consensus and Procedural Rationality Control

Roaming Charges

Emma Nyhan, A Window Apart

EJIL: Debate!

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights

John Gerard Ruggie and John F. Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale Read the rest of this entry…

 

New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

Published on September 7, 2017        Author: 
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In this latest episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Niels Petersen of the University of Münster, whose article, “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”, appears in Volume 28, Issue 2 of the journal.

In the article, Professor Petersen explores International Court of Justice decisions confirming the existence of customary international law.  The abstract of the article states that:

It is often observed in the literature on customary international law that the identification practice of the International Court of Justice (ICJ) for customary norms deviates from the traditional definition of customary law in Article 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

The EJIL:Live! discussion focuses on the principal empirical findings of the article, and Petersen’s novel conceptualization of those arguments in terms of “judicial politics”, explicable by the institutional constraints that the Court faces. This conversation offers a reflection on how this assessment of the jurisprudence could alter scholars’ normative conceptions of the Court’s decisions, particularly in regards to customary international law.

 

Read the rest of this entry…

 
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The Partition of India and Pakistan: Lessons on UN Membership in the Event of a Break-Up of a State

Published on August 21, 2017        Author: 
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70 years ago today (21 August 1947) the United Nations Security Council adopted Resolution 29 recommending that the General Assembly admit Pakistan to membership of the United Nations. That resolution was adopted a few days after British India was partitioned, and the emergence on 15 August 1947 of the newly independent countries of India and Pakistan. Of the many issues that arose out of the decolonisation of India, one new legal issue was how to deal with membership of the emergent states in the recently created United Nations. The UN was faced for the first time with an issue, which has proved to be a recurring one in the history of the UN: how should the organization deal with the break-up of an existing member? There have since been many cases where a number of states have emerged on the territory of an existing member after a break-up of the member (the most recent cases being Montenegro’s separation from Serbia in 2006 and South Sudan’s separation from Sudan in 2011). In all of these cases, one of the key questions that arises is whether the legal personality of the existing state continues and, if so, whether it may simply retain its membership in the UN despite the break-up. Or alternatively, is the previous state to be taken as no longer existing with all the entities emerging on its territory to be regarded as new states? Where new states have emerged from a UN member should such new states be required to apply anew for UN membership? The principles that emerged from the partition of India, with respect to the membership of India and Pakistan, came to be relied upon in later situations, particularly in the 1990s upon the break up of the Soviet Union, and ultimately also in the case of the former Yugoslavia.

India’s membership of the UN is also interesting because it (meaning British India) was an original member of the United Nations and had previously been a member of the League of Nations, even though it did not become independent until 1947. It held that membership in the UN despite Articles 3 and 4 of the UN Charter stating that membership in the UN was open to “states”. British India, being a dependent territory, was not a state as a matter of international law before August 1947. However, pre-independence India was not the only entity that was an original member of the UN that was not a state. Read the rest of this entry…

 
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Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case.

Published on July 10, 2017        Author:  and
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In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.

Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case. Read the rest of this entry…

 

Can the International Court of Justice Decide on the Chagos Islands Advisory Proceedings without the UK’s Consent?

Published on June 27, 2017        Author:  and
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As Marko has noted in this post, last week Thursday, the UN General Assembly adopted a resolution requesting the International Court of Justice provide an advisory opinion on the legality of the separation by the United Kingdom of the Chagos Archipelago from the colony of Mauritius prior to the grant of independence to Mauritius by the UK in 1968. Under Article 96 of the UN Charter, the General Assembly can request from the ICJ an advisory opinion on “any legal question.” However, in the process leading to the adoption of the General Assembly resolution, the UK argued that the question put to the Court is essentially about a bilateral dispute between States, and that it is inappropriate for the ICJ advisory opinion procedure to be used to obtain adjudication of a bilateral dispute between states that have not consented to ICJ jurisdiction over that dispute (see summary of debate here and UK statement here). As Marko noted in his post, the Assembly resolution is drafted so as to try to demonstrate that the matter is not (or not just) a bilateral dispute over sovereignty to the Islands but rather a question of self-determination within the remit of the General Assembly. Undoubtedly, the question of the Court’s competence to render the opinion, and of the appropriateness of doing so will be raised again before the Court. This post focuses on the role of state consent in the Court’s advisory jurisdiction, and explores the previous jurisprudence of the Court on whether it can render an advisory opinion which requires it to pronounce on the obligations of states and in particular to pronounce of disputes between states. A key preliminary question the Court will be faced with in the Chagos Islands advisory opinion is whether it (the ICJ) should, for the first time, exercise its discretion not to give an advisory opinion on the ground that the request offends against the principle requiring consent for international adjudication of inter-state disputes. If it does that, the Court would be following a decision of the Permanent Court of International Justice refusing to give an opinion on such grounds.

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The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction?

Published on June 26, 2017        Author: 
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The states parties to the Statute of the International Criminal Court have been meeting in New York recently to begin discussions that it is hoped will lead to a decision at this December’s Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression. These discussions are taking place seven years after the ICC states parties, meeting in Kampala, Uganda, adopted a series of amendments to the ICC Statute dealing with the crime of aggression. Those amendments remedied the failure to agree in 1998 in Rome on the definition of the crime of aggression and the conditions under which the Court can exercise jurisdiction over aggression. However in Kampala, states parties decided that the Court’s exercise of jurisdiction over aggression would require 30 ratifications or acceptances [(Arts. 15 bis (2); Arts. 15ter (2), ICC Statute], and could not happen prior to the taking of a decision by the states parties to activate that jurisdiction, with such decision not to be taken before 1 January 2017 [(Arts. 15bis (3); Arts. 15ter (3), ICC Statute]. In Kampala states parties “Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible” [Resolution RC/Res. 6]. States parties now face the moment of decision.

It was a privilege to be invited to a meeting of states parties held on June 2, at the UN Headquarters in NY, to present my views on what has turned out to be the most contentious question in the current discussions about aggression: who will be subject to the ICC’s jurisdiction with respect to the crime of aggression? It should be recalled that states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression under Art. 15bis (4) of the amended ICC Statute by simply lodging a declaration with the Registrar of the Court. However, some states that have not yet ratified the amendments are of the view they should not be required to opt out in order for their nationals to be exempt from ICC jurisdiction over aggression. Thus, the most important question on which there are different views among state parties is this:

Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter propio motu?

In summary, my view on that question, which I will set out below, is that the Court will not have jurisdiction in such a situation. Read the rest of this entry…

 

Election of Judges to the International Tribunal for the Law of the Sea

Published on June 17, 2017        Author: 
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2017 will be a busy year for elections to international tribunals. There will be elections later this year to elect five Judges of the International Court of Justice and six judges of the International Criminal Court (see here). Earlier this week, the States Parties to the United Nations Convention of the Sea elected seven Judges to the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges and elections for seven judges are held every three years. As with the ICJ and the ICC, ITLOS judges serve for a term of 9 years and may be re-elected [Art. 5(1)ITLOS Statute]. The purpose of this post is to simply to report the results of the 2017 ITLOS election and to make a few observations about possible trends in elections to international tribunals.

The States Parties re-elected two judges currently on the ITLOS bench: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). The five new judges taking up their seats on the 1st of October 2017 will be: Mr Oscar Cabello Sarubbi (Paraguay), Ms Neeru Chadha (India), Mr Kriangsak Kittichaisaree (Thailand), Mr Roman Kolodkin (Russian Federation), and Ms Liesbeth Lijnzaad (The Netherlands).  The full list of candidates for the elections can be found here. Judges are elected where they obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties [Art. 4(4), ITLOS Statute]

An interesting development in the current ITLOS election is the failure of two serving judges: Judges Joseph Akl (Lebanon) and Rudiger Wolfrum (Germany) to be re-elected.  The qualifications and experience of these judges are beyond doubt. However, both have been on ITLOS since its formation in 1996 and there might be a feeling that 21 years is long enough for anyone. I have heard it said at the UN there is a feeling among states that though there are no formal term limits for judicial positions, treaty bodies and the like, it is not healthy for individuals to be there for too long. It was a surprise to some (myself included) when the late Sir Nigel Rodley was not re-elected to the Human Rights Committee last year and perhaps the long period of service on the Committee was a factor. This is an issue that states should take into account in nominating candidates.

Two of the seven judges elected are women (Neeru Chadha and Ms Liesbeth Lijnzaad, who both recently represented their states in the Enrica Lexicie and Artic Sunrise proceedings before ITLOS.). Read the rest of this entry…

 

Trivia: International Organizations Headquartered in Non-Member States

Published on May 5, 2017        Author: 
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Michael Waibel’s post of yesterday highlighted one of the significant issues that will need to be sorted out in the Brexit negotiations between the UK and the EU. Another issue, though of less significance, that will need to be resolved is the (re)location of a couple of EU agencies that currently have their headquarters in London: the European Medicines Agency (EMA) and the European Banking Authority (EBA). It has been reported that the EU, understandably, wishes to move these agencies out of London once Britain leaves the EU and apparently a number of cities are competing to have these agencies relocated to them (see here and here). However, it has also been reported that Britain would like to keep these agencies located in the UK even after Brexit.

“David Davis, Brexit secretary, does not accept that the two agencies and roughly 1,000 staff will have to move from London’s Canary Wharf, even though the EU is about to run a competition to relocate them. A UK Brexit department spokesman said: ‘No decisions have been taken about the location of the European Banking Authority or the European Medicines Agency — these will be subject to the exit negotiations.’

The government has left open the possibility of keeping part of some EU agencies, at least in the short term, but the idea of the UK hosting key institutions after Brexit is unacceptable in Brussels.”

While the idea that EU institutions may remain based or even headquartered in the UK after the UK remains in the EU might, at first sight, seem unrealistic, it should be remembered that Geneva was the “European headquarters” for many decades when Switzerland was not a member of the United Nations. Switzerland only joined the UN in 2002, over 50 years after the UN was formed and had based its major European office there.

From time to time I have posed trivia questions on the blog, but usually related to international tribunals. This time I have a question that relates to international organizations.

My question is this: Which international organizations have their headquarters or main offices located in a non-member state?

Read the rest of this entry…

 
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