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Home Archive for category "EJIL Analysis"

Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

Published on August 21, 2019        Author: 
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That non-State armed groups (NSAGs) engage in hostilities on a frequent basis is not news. Indeed, NSAGs are active in the majority of contemporary armed conflicts (at 19). What seems to have changed in the last few years is the increasing attention that the international community is paying to their behavior, largely due to the impact that they have on civilians. While it is undisputed that international humanitarian law (IHL) binds NSAGs (para 505), finding effective strategies to enhance their level of compliance remains challenging, especially considering that the baseline expectation is generally low (at 69).

Interestingly, while some NSAGs have been responsible for IHL violations, others have also shown a degree of compliance for certain rules during non-international armed conflicts (NIACs). As this year marks the 70th anniversary of the four Geneva Conventions of 1949, some reflections related to how parties to armed conflicts – in this case, NSAGs – actually behave are in order.

Describing NSAGs’ Variations

Generally, compliance has been defined as “behavioral conformity with existing norms and regulations” (at 65). For NSAGs, this implies the observed match between their behavior and their international obligations.

As parties to armed conflicts, NSAGs should not be seen as entities that either violate or respect international law without exception. Instead, they may follow certain rules while disregarding others. For instance, a NSAG may respect the prohibition of using and recruiting children in hostilities, but may summarily execute detainees or take hostages. Similarly, a group may deliberately attack health care facilities and transports in breach of IHL, while prohibiting the forcible displacement of civilians. At the same time, these non-State entities often modify their behaviors throughout the hostilities, reflecting and increase or decrease in their level of compliance with humanitarian norms. Wood has identified that civilian victimization is “anticipated during moments in which the viability of the groups is threatened or when it faces significant military setbacks” (at 15). Variation is particularly evident during peace processes (here, for an example). When a NSAG looks for political recognition, it might adopt a different attitude than a group whose main purpose is to show its strength or to terrorize the civilian population living in the territory it controls.

Accordingly, compliance with IHL should be conceived as a spectrum, rather than an on/off switch. Read the rest of this entry…

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Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 
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The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…

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Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 
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With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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More on Public International Law and Infectious Diseases: Foundations of the Obligation to Report Epidemic Outbreaks

Published on August 15, 2019        Author: 
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In his recent post on the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo, Mr. Villarreal inter alia mentions the connection between the International Health Regulations (IHR) and international human rights law, arguing that states’ obligations under the IHR are to be read in conjunction with those under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Obviously, the right to health enshrined therein is of utmost relevance.

While that point of view deserves full support, a further link could be traced between international human rights law and “international law of infectious diseases” – the obligation of states to report outbreaks of infectious diseases, lying at the very heart of international efforts to cope with pandemics.

This post intends to demonstrate that the reporting obligation for infectious disease outbreaks can be inferred from general legal sources such as the duty of state co-operation and the human right to health as well as from the IHR – a specific regime. The below analysis purports to show how and why this could and should be done.

Disease outbreaks and the duty to co-operate

Although the mentioned Ebola outbreak was originally reported to the World Health Organization (WHO) by the Government of the DRC, states may well be disincentivised to notify outbreaks of contagion, especially on crucial early stages. Hence the need for incentives for honesty in this regard, not excluding legal ones.

The IHR (Art. 6) establish the reporting duty, i.e. the obligation of states to assess events occurring within their territories using a special decision-making instrument attached to the IHR and timely notify the WHO of all events which may constitute a public health emergency of international concern (the legal regime for declaring a PHEIC has been discussed in the mentioned post).

The duty (sometimes referred to as the principle) of state co-operation under general international law and the specific obligation of reporting epidemic outbreaks share an obvious fundamental similarity: both pursue the same objective – addressing issues that transcend national borders and are beyond sovereign control. Although individual states are responsible for preserving public health in their territories, their efforts may be rendered meaningless without international co-operation (J. Tobin, The Right to Health in International Law (2012), p. 325). In the WHO’s words, “health is a shared responsibility, involving equitable access to essential care and collective defense against transnational threats” (UNSG, Global Strategy for Women’s and Children’s Health (2010)).

This finding, however, considerably loses in value due to the legal nature of the duty to co-operate. On the one hand, it is enshrined in the United Nations Charter (Arts.1(3), 2, 55, 56), as well as the UNGA’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States and has allegedly become a part of customary international law (R. Wolfrum, International Law of Cooperation (2010), para. 13). On the other hand, under the UNC, the principle of state co-operation is said to reflect one of the UN objectives rather than constitute a binding obligation (R. Wolfrum, International Law of Cooperation (2010), para. 16). The mentioned UNGA Resolution adds little clarity.

The duty to co-operate put into context

So, should it be founded upon the duty to co-operate, the obligation to report epidemic outbreaks will end up being no more enforceable than the latter. Still, there is a chance of enhancing the enforceability by putting the duty of co-operation into a specific context. Read the rest of this entry…

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The Interests of Justice- where does that come from? Part II

Published on August 14, 2019        Author: 
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Editor’s Note: This is part II of a two-part post. Read part I here.

After tracing the drafting history of article 53 of the Statute in part I of this post, part II is dedicated to the consequences that may be drawn from the relevant drafting history for the application of the “interests of justice” criterion.

The  “Interests of Justice”: a Criterion for a Limited Use

While the preparatory works of the Statute reveal that the drafters intended to provide for an “interests of justice” criterion, it is clear that they also intended to restrict its use, especially at the stage of the initiation of the investigation. This seems logical, as such a criterion was originally proposed only with regard to the initiation of prosecutions.

This conclusion arises from a comparison of the draft Statute as it stood on 18 June 1998 with the text of article 53 adopted during the last week of the Rome Conference. Such a comparison shows radical changes during the negotiations in Rome: (i) a negative formulation was finally adopted, whereas a positive determination was required from the Prosecutor at the beginning of the Rome Conference; (ii) the text of article 53(1)(c) was amended to start with the necessity to first consider factors militating in favour of an investigation (“the gravity of the crime and the interests of victims”); and (iii) a high threshold was inserted in relation to the “interests of justice” criterion (“substantial reasons”) in comparison to the relatively low threshold (“reasonable basis”) for the two other criteria provided for in article 53(1)(a) and (b). In addition to those changes, the drafters also adopted a specific mechanism of judicial review under article 53(3)(b) of the Statute with regard to the “interests of justice” criterion, which the Pre-Trial Chamber may initiate proprio motu.

Although the vagueness of the “interests of justice” criterion is regrettable, the absence of a specific definition in the Statute was “compensated” by the procedural compromise described in the preceding paragraph, which aimed to limit the use of interests of justice criterion and prevent its abuse. As mentioned already in the part I of this post, it was this procedural compromise that alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations with regard to the existence of this criterion, and finally allowed its adoption in Rome. Read the rest of this entry…

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The Interests of Justice- where does that come from? Part I

Published on August 13, 2019        Author: 
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There has been much debate about the decision issued by Pre-Trial Chamber II rejecting the request by the Office of the Prosecutor to open an investigation into the situation in Afghanistan because such an investigation would not serve “the interests of justice”.

Despite the recent surge in academic interest in this criterion, which appears in article 53 of the Rome Statute (the “Statute”) of the International Criminal Court (the “ICC” or “Court”), not much has been written about its origins (for an exception, see here). Yet, the drafting history of the “interests of justice” criterion is highly instructive for its application. Accordingly, this post is divided in two parts: the first part will trace the drafting history of the “interests of justice” criterion; the second part will provide an interpretation of this criterion as informed by its drafting history.

It is worth recalling that the negotiations on the Rome Statute started on the basis of a project which was developed and finally adopted in 1994 by the International Law Commission (“ILC”). This project was discussed first in the context of an ad hoc Committee established by the United Nations General Assembly, which convened in April and August 1995. Then, a Preparatory Committee was established by the same Assembly, which convened twice in 1996, three times in 1997 and once in 1998. It is the final report of that Committee in April 1998 which was the basis for the negotiations during the Rome Conference, which took place from 15 June until 17 July 1998. Those formal sessions were completed by intersessional meetings during which useful progress was made.

The Draft Statute of the International Law Commission

There was no mention of the criterion of “interests of justice” in the Draft Statute for an International Criminal Court adopted by the ILC (“ILC Draft Statute”) in July 1994. Article 26 (‘Investigation of alleged crimes’) of the Draft Statute did not require the Prosecutor to consider specific criteria in deciding whether to initiate an investigation. This provision simply stated that the “Prosecutor shall initiate an investigation unless the Prosecutor concludes that there is no possible basis for a prosecution under this Statute and decides not to initiate an investigation”, in which case the Prosecutor had to inform the Presidency accordingly Read the rest of this entry…

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Inviolability and the Protest at the Bahraini Embassy

Published on August 9, 2019        Author: 
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This week Channel 4 News broadcast a remarkable story about a dissident who climbed onto the roof of the Bahraini Embassy in London. The man, Moosa Mohammed, was part of a larger group protesting planned executions in Bahrain, executions which have been condemned by human rights organisations. The protest and underlying cause are rightly at the centre of the story, and the broadcast captures the confusion and drama of the night in question. Mr Mohammed is accosted on the roof by embassy staff, appears to be beaten by a man with a stick, and, in his interview with Channel 4 News, asserts that the embassy staff threatened to throw him off the roof. But the broadcast is also remarkable for it shows, on cell phone footage, the Metropolitan Police breaking open the embassy doors and entering the premises.

To say it is rare to see the police of a receiving state breaking open the doors of a foreign embassy is an understatement. As the broadcast highlights, the inviolability of diplomatic premises is established in international law. In this post, I will discuss the legality under international law of the UK’s actions. For the purposes of the legal analysis I will assume both that there was, on an objective level, a threat to the life/bodily integrity of Mr Mohammed and that the police were acting on the back of their perception of that threat. This factual position is disputed by Bahrain. First, I set out the case that the UK’s actions were unlawful on the basis of the unconditional rule in Article 22(1) of the Vienna Convention on Diplomatic Relations. Second, I suggest that the better view is that the UK’s conduct was lawful, and discuss two routes to that conclusion. Third, I discuss the Bahraini Embassy’s statement.

Read the rest of this entry…

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UNCITRAL and ISDS Reform: China’s Proposal

Published on August 5, 2019        Author:  and
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On 19 July 2019, China submitted its proposal on investor-state dispute settlement (ISDS) reform to UNCITRAL. A Chinese version is available, though an English translation is yet to be posted. China reaffirms its commitment to ISDS as an important mechanism for resolving investor-state disputes under public international law. However, it takes note of significant criticisms of ISDS and suggests various pathways for reform including, most notably, supporting the study of a permanent appellate body. In combination with the European Union’s “open architecture” approach, where the EU has signalled that it is open to working with other states that might wish to sign onto an appellate body and/or the multilateral investment court, this means that two of the world’s three biggest economies have now signalled support for significant reform of ISDS, including the possible creation of a permanent appellate body.

China’s UNCITRAL submission

China began in the investment treaty system as an ISDS sceptic but, over the years, has become an ISDS convert. In this submission, China starts from the position that ISDS plays an important role in protecting the rights of foreign investors and promoting cross-border investment, as well as helping to build the rule of law in investment governance and avoiding economic disputes between investors and states escalating into political battles. Given this, China affirms its belief that ISDS is overall a mechanism that is worth maintaining. Given China’s growing interests as a capital exporter, particularly along the Belt and Road route, this endorsement of ISDS should not come as a surprise and is in line with the evolution of China’s treaty practice toward embracing ISDS over a full range of disputes.

Despite this general affirmation, China recognizes that there have been significant criticisms made of ISDS that need to be addressed. These include that: the current system lacks an institutionalized and reasonable error-correcting mechanism; the current system of ad hoc awards lacks stability and predictability; the professionalism and independence of arbitrators has been put into question; third party funding is affecting the balance of parties’ rights; and investment arbitration proceedings are long and costly. Of note, China also states that the phenomenon that the arbitrators and lawyers of investment arbitration are limited to a few experts deserves special attention. China states that ISDS should be more open and inclusive with increased participation of experts from developing countries. Read the rest of this entry…

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Public International Law and the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo

Published on August 1, 2019        Author: 
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On 17 July, 2019, the World Health Organization (WHO)’s Director-General declared, under Article 12 of the International Health Regulations (IHR), that the Ebola outbreak in the Democratic Republic of Congo (DRC) constitutes a Public Health Emergency of International Concern (PHEIC). The declaration took place after an Emergency Committee issued its advice in the same sense.

The aftermath of the PHEIC declaration has given way to questions about what exactly its implications –legal and otherwise– are. Some of the general features of PHEICs are described elsewhere. In turn, this post provides a closer look at the underlying legal regime of the IHR, with an emphasis on provisions related to the declaration of a PHEIC. Afterwards, a brief account of the current situation in the DRC Ebola outbreak is provided. Lastly, some of the potential consequences, legal and otherwise, of a PHEIC declaration are discussed.  

The Legal Regime of PHEICs

The IHR were approved at the 58th World Health Assembly in 2005, in accordance with Article 21 of the Constitution of the WHO. This provision gives the World Health Assembly the authority to issue regulations, inter alia, in the subject of “procedures designed to prevent the international spread of disease”. Notably, the IHR do not require further ratification by states to enter into force, rather only a two-thirds majority vote in the World Health Assembly (Article 60a Constitution of the WHO). Regulations adopted under this procedure become binding for all WHO Member States, with the exception of those which explicitly “opt out”. The IHR entered into force in 2007, and are currently binding for all 194 WHO Member States and Liechtenstein. Read the rest of this entry…

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Filed under: EJIL Analysis
 

The Colombian Constitutional Court Judgment C-252/19: A new frontier for reform in international investment law

Published on July 29, 2019        Author: 
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On 6 June 2019, the Colombian Constitutional Court announced its long-awaited decision (made public 2 July 2019) regarding the constitutionality of the 2014 Colombia – France Bilateral Investment Treaty (BIT). Using an innovative line of reasoning, the Colombian Court did not only rule on whether or not this text was constitutional. It further declared the BIT to be “conditionally constitutional” [condicionalmente exequible], requiring the issue of a joint interpretative note that would clarify the meaning of several standards of treatment contained in the BIT.  

This is not the first time that a constitutional adjudicator has analyzed international investment agreements. In Europe, for instance, resistance to International Investment Agreements (IIAs), such as the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), has been framed in constitutional terms. However, there are several factors which point to the importance of this judgement not only for the two countries involved but also, more broadly, for the way multilateralism is understood.

The Court decision and the remedy of ‘conditioned constitutionality’

On 10 July 2014, France and Colombia signed a BIT in order to establish a legal framework for foreign investment. In line with updates to other investment agreements in recent years, the revised Colombia – France BIT incorporates a series of features that aim to protect the regulatory space of states. However, the treaty also contains clauses that have been criticized (see here) for not protecting the interests of a developing state such as Colombia.

After a detailed analysis of all the provisions in the BIT and the arguments for and against the declaration of constitutionality, the Court decided that the treaty was compatible with the Colombian Constitution. However, for some clauses of the BIT, it made the declaration of constitutionality conditional on the implementation of a future interpretative declaration of the two countries that would clarify the meaning of the words used to draft substantive standards of treatment.  The Court sketched its methodology in the following way: Read the rest of this entry…

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