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Part II: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 21, 2018        Author: 
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[Part II of a two-part post]

When consent has been vitiated

One of the most challenging aspects of partition is proving that its representatives’ consent was vitiated due to duress. In nearly all cases of partition duress, coercion, and even fraud has been alleged by one of the parties. In other words, their consent to the loss of territory was not freely given.

In Ireland, it was argued that the threat of force was employed during the negotiation of the Anglo-Irish Treaty in 1921 to ensure the Irish delegation accepted the option of dominion status against that of a republic (A. Carty, Was Ireland Conquered, 1996, p. 84). It was also alleged that the delegation’s consent to the partition was brought about by deceit because of assurances given to them that primary importance would be given by a Boundary Commission to the ‘wishes of the inhabitants’ in the redrawing of the boundary between Northern Ireland and the Irish Free State when, in fact, the UK never had any intention of interfering with the integrity of the six counties (A. Carty, Was Ireland Conquered, 1996, pp. 135-140).

In British India, it was argued that Mountbatten held a ‘metaphorical gun’ to Mohammad Ali Jinnah’s head when he ‘consented’ to a ‘moth-eaten Pakistan’ that he had spent his whole career opposing. Mountbatten even admitted that he ‘drove the old man quite mad’ by insisting that the logic of partition, if applied to India, must equally apply to the provinces of the Punjab and Bengal (quoted in M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Nehru agreed with Sardar Patel that ‘it might be possible to frighten Mr. Jinnah into cooperation because of the shortness of time available before partition must be completed’ (M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Read the rest of this entry…

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Part I: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 20, 2018        Author: 
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[Part I of a two-part post] 

The advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 are over, but an opinion that answers the legal questions raised in the request could have consequences well beyond the Indian Ocean.

Earlier this month, Stephen Allen contributed a post on the self-determination arguments made in relation to the first question asked of the court. Like Allen, I have taken sides in my scholarly work, although unlike Allen, I have argued that self-determination emerged as a customary norm of international law before 1970. As I argued in my article on the arbitration (2010-2015) between the UK and Mauritius (published in volume 19 of The Max Planck Yearbook of United Nations Law, 2016, pp. 419-468), the emergence of a norm prohibiting partition in the decolonization context would have outlawed the division of the archipelago before independence in 1968, unless it could be shown that Mauritius consented to the separation.

In this post, I argue that the legal arguments raised by the Applicants in the South West Africa Cases could be of direct relevance to the opinion, because although the ICJ refused to address the merits, the cases spanned a period of time (1960-1966) that is germane to any contemporary assessment of the legality of the decision to partition the Chagos Archipelago in 1965. While the Applicants did not reference the Colonial Declaration (GAR 1514 (XV) (1960) in their pleadings, they nevertheless argued that international law in the 1960s prohibited partition, demonstrating that there were principles of law at stake that proscribed the non-consensual division of territory.

What remains missing is an authoritative opinion from the world court. Read the rest of this entry…

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The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

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ECtHR Judgment in Big Brother Watch v. UK

Published on September 17, 2018        Author: 
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Last week the European Court of Human Rights issued a highly anticipated blockbuster Chamber judgment in Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.

This is the first mass electronic surveillance case to be decided against the UK after the Edward Snowden revelations, and it touches upon numerous issues. The judgment is nuanced, complex, and long. It addresses key questions such as the proportionality of bulk interception programmes much more directly and with greater sophistication than the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08, which was decided by a different Chamber while this case was being deliberated, and which also upheld a bulk surveillance programme (see here for Asaf Lubin’s take on Just Security).

The judgment is too rich to summarize easily, so I will only set out some key takeaways (for an extensive discussion on surveillance and privacy in the digital age, see my 2015 Harvard ILJ piece).

First, and most importantly, the judgment is a mixed bag for privacy activists: while the Court finds that the UK’s surveillance programme under the now-defunct Regulation of Investigatory Powers Act (RIPA) was deficient in important respects and in violation of Article 8 and 10 of the Convention, it at the same time normalizes such mass surveillance programmes. In particular, the Court decided that bulk interception programmes are not categorically disproportionate, as privacy activists have argued. Second, in a similar vein, the Court finds that prior judicial authorization is not indispensable for the legality of bulk interception, again contrary to what privacy activists have argued, even if prior judicial authorization could be seen as best practice (note that under the new 2016 Investigatory Powers Act the UK has moved to a double-authorization system which involves both a minister and an independent quasi-judicial commissioner).

Here are the key paragraphs (warning – extracts from the judgment make this a lengthy post):

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Slavery in Domestic Work: The Potential for State Responsibility?

Published on September 17, 2018        Author:  and
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On 10 September 2018, UN Special Rapporteur on Contemporary Forms of Slavery, Urmila Bhoola, presented her latest report to the Human Rights Council. The report focuses on an often-hidden aspect of modern slavery – the slavery and servitude of “marginalized women workers in the global domestic economy” (para 11). In this post, we highlight key findings of the report and also indicate areas for further exploration, including the potential use of State responsibility.

11.5 million domestic workers are international migrants, which represent 17.2% of all domestic workers and 7.7% of all migrant workers worldwide (para. 31). To give a sense of the scale, in Hong Kong there are 370,000 domestic workers of which 98.8% are women.

The social, cultural and racial biases these women face are often extreme. To give an example, Sondos Alqattan, an Instagram star and makeup artist with over 2.3 million followers, criticised new laws in Kuwait giving Filipino workers one day off per week and preventing employers from seizing their passports. She said, “How can you have a servant at home who keeps their own passport with them? What’s worse is they have one day off every week”.

The UN Special Rapporteur notes that the domestic work sector accounted for 24% of forced labour exploitation in 2017 (para 43). Exploitative practices include psychological, physical and sexual violence; retention of identity documents preventing freedom of movement; withholding of wages; and excessive overtime (para 42).

There are two aspects of the Report that make a particular contribution to the discussion of slavery in domestic work. Read the rest of this entry…

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From the Indigenous Peoples’ Environmental Catastrophe in the Amazon to the Investors’ Dispute on Denial of Justice: The Chevron v. Ecuador August 2018 PCA Arbitral Award and the Dearth of International Environmental Remedies for Private Victims

Published on September 13, 2018        Author: 
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The recent 30 August 2018 Chevron v. Ecuador arbitral award is yet another example of the ongoing asymmetries of protection in the much-beleaguered investor-State dispute settlement system, in which States have generously afforded protections to foreign investors to bring suits directly against States, without creating parallel avenues for affected local communities and/or indigenous peoples to initiate arbitration proceedings directly against either foreign investors or irresponsible States. Despite all our collective best efforts at ongoing reform in UNCITRAL (see updates on Working Group III’s mission on ISDS Reform here), ICSID (see their latest rules amendment project here) and elsewhere, I retain serious doubts as to whether investor-State dispute settlement could ever symmetrically represent the environmental and cultural interests of indigenous peoples and local communities, as effectively as it does investors’ claims to treaty protection and (significantly substantial) compensatory relief.  Today, environmental plaintiffs have to navigate between an unwieldy, unpredictable, and quite disparate mix of remedies before domestic (administrative or judicial) courts or tribunals of their home States, potentially some regional courts (such as the Inter-American Court of Human Rights) or treaty monitoring bodies (whether those specifically created in environmental treaties or human rights treaties), other foreign courts in other countries that permit some environmental tort claims, and possibly, any cases that their home State can bring under diplomatic protection to pursue remedies against foreign nationals or the home States of these foreign nationals.  And all these frequently take place in the context of abject differences of power, resources, and capacities between environmental and human rights victims as claimants against either States and/or foreign investors, vis-a-vis foreign investors as claimants or States as respondents.  It’s not at all hyperbolic to observe that, with respect to the international environmental system, the deck already appears heavily stacked against environmental plaintiffs at the outset.  

The Chevron v. Ecuador arbitration presents a crystal example of how what was originally an environmental dispute seeking remediation for one of the worst environmental disasters in history involving oil spillage into 4,400 square kilometers of the Amazon rainforest – ultimately mutated into the investors’ denial of justice claim in investor-State arbitration.  At least, in my view, while  the erudite tribunal in this case thoroughly set out the technical legal reasoning in its award on the precise legal issues of the investment treaty breaches alleged, the award itself more broadly demonstrates that we may well be at the point that a dedicated separate international dispute settlement system might already be necessary to properly adjudicate victims’ claims in human rights and environmental disputes. (Notably, other scholars refer to this dispute to highlight the illegitimacy or alleged exces de poivre of arbitral tribunals making assessments and evaluations of the acts or decisions of domestic courts and judicial systems ipso facto – a significant  heavily disputed structural matter about the current investor-State dispute settlement system, which is, however, not the law and policy observation I make here.) Some efforts looking beyond the narrow ISDS framework, among others, include projects such as the drafting of the new Hague Rules on Business and Human Rights Arbitration; the tentative and non-binding 15 September 2016 policy paper of the Office of the Prosecutor of the International Criminal Court exploring the possibility of prosecuting environmental crimes; as well as the Permanent Court of Arbitration’s suite of environmental dispute resolution procedures (interstate arbitration under environmental treaties, mixed dispute resolution under environmental instruments and contracts, specialized environmental rules for arbitration and conciliation).  To date, these initiatives have not gone much further beyond their incubation.

The most difficult aspect of the Chevron v. Ecuador case is the fact that the arbitration turned on the issue of Ecuador’s investment treaty breaches over what Chevron alleged were very troubling serious acts of fraud and corruption committed by lawyers and judges to produce a favorable 2011 Ecuador court judgment for the environmental plaintiffs.  The fraud and corruption allegations have long since overshadowed the urgency of decades of environmental damage that have largely gone without significant and continuing remedy, alongside ongoing health problems from toxic contamination that have impacted indigenous peoples and local communities for generations. (Note: this pollution disaster originated long before I or generations of current international lawyers were even born.) The Chevron v. Ecuador arbitration succeeded in laying the blame on Ecuador since, for the tribunal, Chevron had already been released from its obligations of remediation under the 1995-1998 Settlement Agreements.  Unfortunately, the arbitral award does not lay out any detailed environmental analysis to explain why contracts such as the 1995-1998 Settlement Agreements would be sufficient to release private parties from short-term, medium-term, and long-term remediation efforts to restore the ecosystem, and whether such releases were at all consistent with international public policy and Ecuador’s own commitments under international law (especially international environmental treaties and customary international environmental law).  Neither did the tribunal explore whether Ecuador alone had the right to conclude the Settlement Agreements on behalf of all the environmental plaintiffs and affected communities, or if Ecuador could indeed effectively and exclusively represent the environmental plaintiffs and affected communities in the investor-State arbitration considering how its government agents exercised oversight (or lack thereof) with respect to the environmental disaster.  Because environmental plaintiffs, indigenous peoples, and affected communities continue to be dependent on the host State of the investment to vindicate their claims against foreign investors, the investor-State dispute settlement system simply cannot lend any of these environmental, indigenous, and local plaintiffs any real, much less effective, voice over their fight to restore the Amazon to health.  While plaintiffs are mired in multiple litigations and arbitrations around the world to seek accountability from either Chevron and its affiliates or their own government in Ecuador, there is virtually no dedicated State, inter-State, regional, or public-private partnership cooperative efforts to try and achieve environmental restoration in the affected 4,400 square kilometers of the Amazon, as depicted in the map below (source here):

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Global Marine Plastic Waste and the Newly Recommended Amendment to the Basel Convention: a Bandage or a Bandaid?

Published on September 12, 2018        Author: 
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The management of plastic waste is a global problem, but it lacks a global legal framework. In particular, the ubiquitous transboundary movement of plastic waste is of major concern; gaps in environmentally sound waste management, and often the insufficient capacity of importing States to deal with the plastic they receive, is a significant factor contributing to vast amounts of plastic making its way into oceans across the world. An international legal instrument regulating the movement and management of waste is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention); with 186 State parties it includes all top plastic waste exporters except the United States. However, most plastic waste is not subject to the Convention.

Last week, a meeting of the Convention’s Open-Ended Working Group Meeting decided to recommend an amendment to the Convention for adoption at the next Conference of States Parties in May 2019 that would significantly widen the scope of plastic waste covered. The blog post will outline the legal implications of this important amendment, before addressing the broader question of whether the regime created by the Basel Convention, in conjunction with the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), is the appropriate avenue for such an approach seeking to reduce the impact of marine plastic litter.

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The Oral Hearings in ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’

Published on September 11, 2018        Author: 
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The oral hearings in the advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 took place at the ICJ last week. Readers will recall the two questions posed by the General Assembly in its request for an Advisory Opinion (Resolution 71/292) and the procedural and propriety issues raised by this case, as discussed by Marko, Dapo and Antonios – here, here and here. A host of States – and the African Union – participated in the proceedings and their voluminous written and oral statements/comments will surely keep interested scholars busy for a long time to come. In this post, I will try to restrict myself to the task of offering a few initial comments on the self-determination arguments made in relation to the first question (essentially, was the decolonization of Mauritius lawfully completed when it acceded to independence in 1968, following the detachment of the Chagos Archipelago?). For this purpose, I will focus on the claims made by the UK and Mauritius for the sake of brevity, and not because I agree with the UK’s contention that Mauritius is the ‘de facto claimant’ in this case (Transcript p. 36).

When approaching the claims and counter-claims concerning the Chagos Archipelago – or the British Indian Ocean Territory (‘BIOT’) – it is worth bearing in mind at least two important considerations. First, the UK is clearly on the wrong side of history as far as both the creation and maintenance of the BIOT are concerned. Secondly, the closest comparable case in the ICJ’s jurisprudence, the Western Sahara Advisory Opinion, is different in one key respect. The Western Sahara Opinion was sought while the General Assembly was actively engaged in a fraught and flawed attempt at decolonization and it was delivered when the crisis was still unfolding. In contrast, in the present proceedings, the ICJ has been invited to answer questions which not only require it to establish the legal significance of events which occurred largely between 1965-1968 but also to assess their present consequences. Undoubtedly, this is a difficult task and we shall have to wait and see whether the Court responds positively to the Request or whether it adopts a more non-committal approach, as it did in its Kosovo Advisory Opinion.

Self-determination and Customary International Law

The UK argued that the right of self-determination had not crystallized as a norm of customary international law (CIL) by either 1965 or 1968 (e.g. Transcript, p. 48). Specifically, it denied that the Colonial Declaration (GAR 1514 (XV)(1960)) generated any binding legal obligations as far as Mauritius’ decolonization was concerned. The 1960 Declaration proclaimed the core right – that ‘all peoples have the right to self-determination’ (para. 2) – while stating that: ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the [UN] Charter’ (para. 6). The UK claimed that the right of self-determination only acquired CIL status with the adoption of the Declaration on Friendly Relations (GAR 2625 (XXV)(1970). It relied on voting records, and the statements made, by State representatives, in the context of the development and adoption of these, and other, resolutions (and contemporaneous academic opinions) in support of its preferred interpretation. Read the rest of this entry…

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The Bashir Appeal at the ICC

Published on September 10, 2018        Author: 
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This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.

In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: Read the rest of this entry…

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The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
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The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

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