Home Archive for category "EJIL Reports" (Page 9)

Peter Tomka Elected President of the ICJ

Published on February 6, 2012        Author: 

The judges of the International Court of Justice today elected Judge Peter Tomka as President of the ICJ, and Judge Bernardo Sepulveda-Amor as Vice-President. Two newly elected judges – Giorgio Gaja and Julia Sebutinde – today took up their seats, with the terms of Bruno Simma and Abdul Koroma having come to an end. The seat of former Judge Al-Khasawneh remains vacant until the elections for his successor, now scheduled for the end of April.

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Germany v. Italy: Germany Wins

Published on February 3, 2012        Author: 

The International Court of Justice this morning rendered its judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (judgment; case materials). As widely expected, Germany won, and won hands down. On the main issue of jurisdictional immunity the Court decided in Germany’s favour by 12 votes to 3 (Judges Cancado Trinidade and Yusuf and Judge ad hoc Gaja dissenting; UPDATE: having skimmed the dissents, it seems that only Judge Cancado Trinidade relied on the jus cogens immunity override theory). On all other claims – immunity from enforcement, jurisdictional immunity in exequatur proceedings and reparation – the Court decided in favour of Germany by 14 votes to 1 (only Judge Cancado Trinidade dissenting). So there’s been no serious split in the Court, to the eternal regret of this year’s Jessup competitors, to whom I extend my sympathies. As is now customary, Judge Cancado Trinidade appended a jolly 88-page dissent, almost twice as long as the Court’s judgment (for what it’s worth, my sympathies equally extend to his clerks). Several other judges appended declarations or separate opinions, but less than could perhaps have been expected – again, the Court was fairly unified.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

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Frankfurt Investment Law Workshop 2012

Published on February 1, 2012        Author: 

Christian Tams sends along the following announcement.

Frankfurt Investment Law Workshop 2012 – Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations? (16-17 March 2012)

For a couple of years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. Following previous events assessing the relationship between Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (see here) and International Investment Law and Its Others (forthcoming 2012), this year’s workshop will explore the growing network of preferential trade and investment agreements (PTIAs) and assess their impact on ordering international investment relations. It will be held in Frankfurt/Main on 16-17 March 2012, immediately following the Frankfurt Investment Arbitration Moot.

The workshop will open with a keynote speech by Professor Raúl Emilio Vinuesa. This is to be followed by panels addressing the interaction between PTIAs and traditional BITs; the impact of PTIAs on the Trade/Investment divide; and the role of regionalism and multilateralism in international investment law.

The event is designed to be a forum for discussion and much room is allocated to debate. Anyone interested in participating should contact Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (S.Schimpf {at} jur.uni-frankfurt(.)de) by 28 February 2012.

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The ICJ Destroys the Jessup Competition

Published on January 30, 2012        Author: 

Yep, you read that right. On Friday this week the ICJ will be handing down its much anticipated judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case, dealing with the whole Ferrini and Distomo immunity saga. Coincidentally, that same saga forms a large chunk of this year’s Jessup moot court competition, with hundreds of law students around the globe having toiled away at their memorials over the past few months and now busily preparing themselves for the national and international oral rounds of the competition (the latter taking place in the last week of March in Washington, DC). The compromis this year is a rather good one (read it here), dealing not just with immunities but also with the legitimacy of governments, attribution of conduct to international organizations, use of force, etc. All the more pity the ICJ is now poised to throw a wrench in it – judicial comity regrettably does not seem to extend to its pretend counterparts around the globe. I can just imagine the pain of all those students who will be forced to ‘distinguish’ the Court’s freshly-minted judgment in their oral pleadings (Germany is widely expected to win the case, but of course who knows). Bad karma for everybody involved. But the poor students mights still have their revenge, as the Court’s website may well crash from the Jessup hordes trying to access the live video feed and/or the judgment on Friday… Happy times.

(On a slightly more serious note, we’ll try to have commentary on the judgment as soon as possible).

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Permanent Contributors

Published on January 30, 2012        Author: 

I am happy to announce that EJIL: Talk! will be joined by Douglas Guilfoyle (UCL), Joanna Harrington (Alberta), and Michael Waibel (Cambridge) as permanent contributors. All three are of course well-known to our readers both for their scholarship and their posts on this blog. Other authors will be joining our roster of permanent contributors in the year to come. We will also be improving the functionality of the website, on which more soon. For now, however, please join me in welcoming Douglas, Joanna, and Michael – we await their contributions with much anticipation!

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Deadline Approaching: ILA Conference in Nottingham

Published on January 27, 2012        Author: 

The deadline for the submission of abstracts is approaching for the Conference on “Security and International Law” (Nottingham, 20-21 April 2012) and Pre-Conference MPhil/PhD Workshop on research methods in public and private international law (Nottingham, 19 April 2012).

The International Law Association (ILA) British Branch invites submissions for papers for its Annual Spring Conference on “Security and International Law”, which will be hosted by the University of Nottingham School of Law from 20-21 April 2012.  The theme of the conference is open to broad interpretation in terms of human, political, military, socio-economic, environmental and energy security as well as security issues arising from the operation of international law in territorial and extra-terrritorial spaces, such as the high seas, aerospace, or the Internet. Full details of the Call for Papers are available here. Details of the Pre-Conference MPhil/PhD Workshop are listed in the Call for Papers in the same document.

Submissions for the Annual Spring Conference should be received by 31 January 2012 and expressions of interest for the Pre-Conference by 1 February 2012.

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Judge Al-Khasawneh Resigns

Published on January 26, 2012        Author: 

I’ve reported in November that in October Judge Al-Khasawneh of the ICJ was appointed Prime Minister of Jordan. I’ve noted how, oddly enough, the ICJ website made no mention of this nor of any resignation by Judge Al-Khasawneh from the Court, even though his new position was clearly incompatible with the judicial function. The ICJ has now issued a press release confirming Judge Al-Khasawneh’s resignation, some three months after his prime-minisiterial appointment. I doubt that this was due to any tardiness by the Court’s press officers: note how the press release says that Judge Al-Khasawneh resigned, but does not say when exactly he resigned, which is again somewhat odd. The Security Council has fixed 27 April as the date for the election of Judge Al-Khasawneh’s replacement, who will complete his term until 2018.

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Interim Measures Requests and the UN Human Rights Treaty Bodies: Canada and the Mugesera Case

Published on January 25, 2012        Author: 

Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.)  Read the rest of this entry…

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Call for Papers: Conference on International Law in Africa

Published on January 19, 2012        Author: 

5 & 6 October 2012

Complexo Pedagogico, Universidade Eduardo Mondlane,

Maputo, Mozambique



In anticipation of the 50th anniversary of the creation of the Organisation of African Unity (OAU) in 2013:

  • the African Foundation of International Law (AFIL)
  • the Centre for Human Rights, University of Pretoria, South Africa
  • the Institute for International and Comparative Law in Africa (ICLA), University of Pretoria, South Africa
  • Faculdade de Direito, Universidade Eduardo Mondlane, Mozambique

are pleased to announce a two-day conference on international law in Africa and invite proposals for papers.

This conference aims to provide a forum for reflection on the pan-African organisation in the specific context of human security, peace and development in Africa, and how the OAU/AU has responded to challenges in these areas.

Read the rest of this entry…

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Briefly Noted: New Report on Somali Piracy

Published on January 12, 2012        Author: 

The House of Commons Foreign Affairs Committee released its report on Somali piracy on 5 January 2012.* I acted as a specialist advisor to the committee, so I will not offer a full analysis but simply highlight some points of interest:

  • the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
  • indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
  • the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
  • the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
  • the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
  • the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
  • the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
  • also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
  • finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

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