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Home Archive for category "EJIL Analysis" (Page 4)

The scope of ICC jurisdiction over the crime of aggression: a different perspective

Published on September 29, 2017        Author: 

In his post of 26 June 2017 Dapo Akande asks:

“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 proprio motu?”

Why does the answer to this question matter? “No” means that an ICC state party that has ratified the amendments will enjoy the Court’s judicial protection only if it falls victim to aggression by one of the other (currently) 33 ratifying states. It would be an opt-in regime for potential aggressor states, and in fact, they could at any time later opt-out again (opt-in-opt-out). “Yes” means that such protection extends to aggression committed by any of the 123 other ICC states parties – of course with the significant caveat they can still opt out. That would be an opt-out regime. All of this of course only in the absence of a referral by the UN Security Council, which would make state consent a moot point.

The issue is currently discussed by ICC states parties in view of the activation decision to be taken in December 2017. I am therefore happy to explain why I think the answer is “yes”, even though Dapo gave a thoughtful argument for “no”. Read the rest of this entry…

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The Fifth Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 27, 2017        Author: 

Over the coming weeks, three blogs – IntercrossEJIL:Talk!, and Lawfare – will host a joint blog symposium on International Law and Armed Conflict. The series will feature posts by some of the participants at the Fifth Annual Transatlantic Workshop on International Law and Armed Conflict, which was held at the European University Institute in Florence in late July. As in previous years, the workshop brought together a group of academic, military, and governmental experts from both sides of the Atlantic. The roundtable, held under the Chatham House Rule, was held over two days and examined contemporary questions of international law relating to military operations.

This summer, there a particular emphasis on issues arising from the ICRC’s updated commentaries to the 1949 Geneva Conventions. The publication of the updated commentaries provided an opportunity to revisit some of the core issues that relate to the obligations of parties to conflicts under Common Article1 (the obligation to respect and ensure respect), issues relating to classification of situations of violence as non-international or international armed conflicts under Common Articles 2 and 3, as well as issues relating to humanitarian access which arise under Common Article 3 and Common Articles 9/9/9/10 of the Conventions. The sessions also examined protection of the wounded and sick; cyberspace and the LOAC; and the Common Article 3 concept of non-state armed groups.

Some of those who attended the workshop have agreed to participate in a series of blog posts focusing on specific topics that were addressed during the workshop. Each blog post represents the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented.

Intercross kicked off the series yesterday with a post from Marten Zwanenburg (Netherlands Ministry of Foreign Affairs) on “The Obligation to ‘Ensure Respect’ for IHL: The Debate Continues” (available here). Read the rest of this entry…

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Barbulescu v Romania: Why There is no Room for Complacency When it Comes to Privacy Rights in the Workplace

Published on September 26, 2017        Author: 

For some privacy advocates, the decision earlier this month of the Grand Chamber of the European Court of Human Rights (ECtHR) in Barbulescu v Romania was another milestone in the pursuit of greater protection for employee privacy. Reversing a decision of the Fourth Section last year, the Court held that the monitoring of an employee’s Yahoo Messenger account breached his right to respect for private life in Article 8. While it would be churlish to contradict such claims, this is no time for complacency.

Mr. Barbulescu was a sales engineer working for a private company in Romania. The company in question prohibited the use of its equipment (including the internet) for personal use – a policy it robustly enforced with dismissals for transgressors – facts which Mr. Barbulescu was made aware of. At his employer’s request, Mr. Barbulescu opened a Yahoo Messenger Account in order to communicate with customers. He was subsequently told that this account had been monitored, revealing that it had been used for personal purposes. When Mr. Barbulescu denied this claim, he was presented with a transcript of the content of his messages. These included exchanges with his brother and his fiancé, some of which were of an intimate nature. Mr. Barbulescu was fired. He challenged his dismissal in the domestic courts alleging that it breached his right to private life. Those claims were dismissed and Mr. Barbulescu brought his case to Strasbourg. Read the rest of this entry…

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So, Has This Ever Happened Before?

Published on September 19, 2017        Author: 

For the past week or so I’ve been enjoying the start of my sabbatical in New York, as a visiting professor at Columbia this semester. And for the past couple of days I’ve been enjoying – well, experiencing – the chaotic collapse of parts of the city during the UN General Assembly. And today I could enjoy – well, behold – the spectacle of the President of the United States threatening another UN member state with nuclear destruction at the podium of the General Assembly:

http://www.trbimg.com/img-59c133a3/turbine/la-na-trump-un-pictures-20170919/650/650x366

Photo credit LA Times: http://www.latimes.com/world/la-un-general-assembly-live-updates-world-awaits-president-trumps-first-assembly-20170918-htmlstory.html

If this is not twisted enough, now North Korea’s reckless pursuit of nuclear weapons and ballistic missiles threatens the entire world with unthinkable loss of human life.

It is an outrage that some nations would not only trade with such a regime, but would arm, supply, and financially support a country that imperils the world with nuclear conflict. No nation on earth has an interest in seeing this band of criminals arm itself with nuclear weapons and missiles.

The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.

Note the nature of the threat – if the US is forced to defend itself or its allies, it will totally destroy North Korea (not – react to the extent necessary and proportionate; presumably even a preemptive self-defense theory would be on the table). Note also how the United Nations is a ‘they’ rather than a ‘we.’  Question for the readers: has this ever happened before? Shoes have been banged at that podium, of course, and sulfur has been smelt. Yet even at the height of the Cold War, has a head of state of a nuclear-weapons state used this kind of directly threatening language? Or is this simply old-fashioned nuclear deterrence inartfully expressed?

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Twenty Years of the ECHR in Ukraine

Published on September 18, 2017        Author:  and

Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).

This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss Read the rest of this entry…

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A Commentary on the Maritime Delimitation Issues in the Croatia v. Slovenia Final Award

Published on September 15, 2017        Author: 

I. Introduction

An arbitral tribunal, constituted under the auspices of the Permanent Court of Arbitration, issued its final and unanimous award in the Croatia v. Slovenia case on 29 June 2017. The arbitration concerned a territorial and maritime dispute between Croatia and Slovenia. This post will focus on the maritime delimitation issues. The present post will deal with the Arbitration Agreement of 2009 (“AA”) (II), the Junction Area (III), and the maritime boundary (IV) in turn. The questions of contamination of the proceedings and the annulment of inter-state arbitral awards have caused a series of controversies. These fall outside the scope of this post and have already been dealt with by Alison Ross and Peter Tzeng respectively. These issues were determined by the reconstituted arbitral tribunal in its partial award rendered on 30 June 2016.

II. The Arbitration Agreement of 4 November 2009

The dispute between the Parties was submitted to arbitration in accordance with an Arbitration Agreement signed by the parties on 4 November 2009 in Stockholm (Annex HRLA-75, Final Award), and witnessed by the then Swedish Prime Minister, Fredrik Reinfeldt, since Sweden then held the Presidency of the Council of the European Union (“EU”). The Arbitration Agreement is unique because it is the first intra-state arbitration agreement of its kind to be drafted under the auspices of the EU, despite the fact that this is not the first occasion where an international organisation was involved in such a task. [See for example the signature for specific purposes of the World Bank of the Indus Waters Treaty 1960, between India and Pakistan, although that treaty is much more complex and not just a simple arbitration agreement (see Article IX and Annexure G). See also for example the involvement of the African Union, the UN and a few EU member states in the drafting of the Comprehensive Peace Agreement 2005, which was witnessed by the Minister of Development Co-operation of the Netherlands on behalf of the EU, paving the way for the drafting of the Abyei Arbitration Agreement 2008, which was eventually signed by the government of Sudan and the Sudan’s People’s Liberation Movement Army only. Brooks Daly has written more on the procedural aspects of the Abyei arbitration.]

The brokering of the Arbitration Agreement by the EU is reflected in Article 9, which requires Slovenia to “lift its reservations as regards the opening and closing of negotiation chapters where the obstacle is related to the dispute”. This was an important provision for Croatia’s accession to the EU. It is to be noted that Slovenia had already been a member of the EU for approximately 5 years at the date of signature of the arbitration agreement, as it had acceded to the EU on 1 May 2004. On the other hand, on the date of signature of the Arbitration Agreement, Croatia was on the path to accession, which was to last for another 4 years, as it eventually became an EU member state on 1 July 2013.

There are two other points worth mentioning regarding the 2009 Arbitration Agreement. First, the applicable law as set out in Article 4 is unusual. The “rules and principles of international law” were applicable to determining the course of the maritime and land boundary (Article 3(1)(a)). International law, equity and “the principle of good neighbourly relations in order to achieve a fair and equitable result” were applicable to determining Slovenia’s junction to the High Sea and the regime for the use of the relevant maritime areas (Article 3(1)(b) and (c)). This is probably a rare instance of the principle of good neighbourly relations for the achievement of a “fair and just result” being encountered in a modern Arbitration Agreement. While it is doubtful whether such a principle could count as a “general principle of law recognised by civilized nations” within the meaning of Article 38(1)(C) of the Statute of the International Court of Justice, it might be regarded as similar to a requirement to determine a case ex aequo et bono under Art. 38(2) of the ICJ Statute. The inclusion of this source of “applicable law” is a curious addition, which can probably be explained by the fact that it was a product of negotiations under the auspices of the EU.

The second point worth mentioning regarding the Arbitration Agreement is that one of the tasks of the arbitral tribunal, as per Article 3 (b)-(c), was to determine “Slovenia’s junction to the High Sea” and “the regime for the use of the relevant maritime areas”. This is a peculiar insertion, and apparently led the arbitral tribunal to determine that starting point of the present arbitration was not whether Slovenia should have a junction to the high sea, but rather where the junction would be and what would be the package of rights given to Slovenia over that area. Read the rest of this entry…

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The MERCOSUR Protocol on Investment Cooperation and Facilitation: regionalizing an innovative approach to investment agreements

Published on September 12, 2017        Author:  and

The States Parties of the MERCOSUR (Argentina, Brazil, Paraguay and Uruguay) signed in April 2017 the Protocol on Investment Cooperation and Facilitation (“MERCOSUR Protocol”).

As discussed in this post, the Protocol draws significantly on the Brazilian model investment agreement (the Agreement on Cooperation and Facilitation of Investments – ACFI), which stands out for departing from the traditional design of Bilateral Investment Treaties (BITs), particularly – but not only – by excluding the possibility of investor-State dispute settlement (ISDS).

The emergence of the MERCOSUR Protocol has implications at the level of investment policy, as it represents a step towards the regionalization of the Brazilian model. It reflects the attempt to include in a single document the realities of four countries with important political, economic and investment policy differences, as expressed by the varying trajectories of Argentina and Brazil in the investment area.

It also raises interesting questions from an international law perspective. It highlights the legal challenges faced by Brazil, which not only joined the network of international investment agreements (IIAs) as a late-comer but also opted for embracing a particular approach to investment treaties. Accordingly, aside from provisions that innovate in investment law-making, the MERCOSUR Protocol incorporates provisions whose intention seems to be to insulate Brazil from applying protection standards often found in the over 3,000 treaties that now comprise the network of BITs, but which have been deliberately absent in the ACFI.

Read the rest of this entry…

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International Law or Comity?  Exploring whether Grace Mugabe can successfully claim immunity for crimes committed on foreign soil.

Published on September 4, 2017        Author: 

Background Facts

On 14 August 2017 various news sites reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman. A court hearing to obtain a statement from Mrs Mugabe was scheduled for the 15th but she failed to appear. On the evening of the 16th the Government of Zimbabwe directed a note verbale to the South African government invoking diplomatic immunity on her behalf and stating that Mrs Mugabe’s itinerary in South Africa included amongst private matters her attendance and participation at the scheduled SADC Heads of States/Governments Summit and other Bi-lateral Diplomatic Meetings.

The question which has gripped lawyers and laymen alike is whether or not Mrs Mugabe can successfully claim any kind of immunity under international law to shield herself from arrest and prosecution.  Media reports asserted that Mrs Mugabe claimed “diplomatic” immunity”. However, as the spouse of a sitting Head of State, ordinarily resident in Zimbabwe, Mrs Mugabe cannot be considered a diplomatic agent and is not entitled to the protections afforded under the Vienna Convention on Diplomatic Relations (VCDR). Customary international law also confers personal immunity on some state officials. This personal immunity is extensive in scope, and wide enough to cover both official and private acts by heads of state, heads of government and foreign ministers as the Arrest Warrant Case  points out. As Mrs Mugabe does not fall within any of the categories above, she cannot claim personal immunity. In addition, customary international law accords, functional immunity in relation to acts performed in an official capacity. This immunity covers the official acts of all state officials and of those who act on behalf of the state.  It is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. However, the alleged assault by Mrs Mugabe was not undertaken in the performance of any official duty and functional immunity is unavailable in relation to that act.

This post considers whether the Mrs Mugabe may have been entitled to immunity, while in South Africa, as the spouse of a head of state. The post first considers whether the spouse of a representative to SADC, an international organization, may be entitled to immunity. It then explores the immunity of family members of state officials on special missions and of heads of states. Read the rest of this entry…

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Persecuting Children: How the Convention on the Rights of the Child has pushed the evolution of refugee law

Published on August 31, 2017        Author: 

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement. International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country). Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees. This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Only a child can be at risk of infanticide, underage military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, domestic child abuse, corporal punishment or pre-puberty FGC.

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

Read the rest of this entry…

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