magnify
Home Archive for category "Featured"

Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean

Published on February 14, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa RicaThe ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)

While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals.  In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute.  The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages.  Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage.  These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.

The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.

Read the rest of this entry…

Print Friendly, PDF & Email
 

The ICJ’s Preliminary Objections Judgment in Somalia v. Kenya: Causing Ripples in Law of the Sea Dispute Settlement?

Published on February 22, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 2 February 2017, the International Court of Justice handed down its Judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). Somalia had brought the case to request that the Court determine its single maritime boundary with neighbouring Kenya. The ICJ held that it may proceed to the merits phase, thereby rejecting the respondent’s submissions. Among other arguments, Kenya raised an objection rooted in Part XV (“Settlement of disputes”) of the 1982 United Nations Convention on the Law of the Sea (LOSC). It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration made pursuant to Art. 36(2) of the ICJ Statute, which excludes “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”.

The fact that Kenya relied on this argument is noteworthy in and of itself, as it was the first time that the Court faced a LOSC-based jurisdictional challenge. Moreover, we believe that the way in which the Court disposed of this argument has far-reaching implications since it casts a long shadow over dispute resolution in the law of the sea. But before delving into the ICJ’s reasoning and its ramifications, we will highlight some essentials of the LOSC dispute settlement system.   Read the rest of this entry…

Print Friendly, PDF & Email
 

Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

Print Friendly, PDF & Email
 

The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars

Published on February 2, 2015        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Since the initiation of the US-led airstrikes against Islamic State (or ISIL) forces in Iraq and Syria in August and September of last year, the legality of the strikes in Syria has been the subject of much discussion. Much of the focus has been on whether collective self‑defence – of Iraq – allows the use of force against non-State actors in foreign territory (Syria), where the territorial State (Syria) is ‘unable or unwilling’ to stop the attacks itself. However, the legality of airstrikes occurring on Iraqi territory does not appear to have occasioned any discussion at all (although see this previous  post on the debate in the British House of Commons on authorising the use of force in Iraq). The presence of consent by the internationally recognised government of Iraq  to the airstrikes (see here) seems to make legality of foreign military action against Islamic State  under the jus ad bellum so obvious as not to require much commentary. However, a closer look at the scholarship on consent to the use of force reveals that the legality of what has variously been called ‘intervention by invitation’ or ‘military assistance on request’ has traditionally been more contentious than this simple statement would suggest. As discussed below, many scholars, and indeed some States, have suggested that there is a general prohibition on military assistance to governments in a situation of civil war or internal rebellion. This suggestion was particularly prominent in the Cold War era and seemed to represent an attempt to limit indirect uses of force by the superpowers. The rule is said to be derived from the prohibition of intervention in the internal affairs of other states, as well as from the principle of self-determination. The argument made by those in support of the rule is that intervention even with the consent of the government denies the people the right to govern their own affairs and to determine their political future. In short, on this view international law guarantees the right to rebel against the government. Others have doubted that a rule prohibiting assistance to governments in civil wars ever did emerge. This post seeks to demonstrate that recent state practice relating to the use of force in Iraq against Islamic State suggests that the evidence of opinio juris in relation to that rule is at present quite weak.

Support for a Rule Prohibiting Military Assistance to Governments in Civil Wars

According to a 1975 resolution of the Institut de Droit International on “The Principle of Non-Intervention in Civil Wars”, “[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.” The resolution defines a “civil war” as a non-international armed conflict: a) between the established government of a State and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of the State, or b) between two or more groups contending for control of the State in the absence of an established government. Read the rest of this entry…

Print Friendly, PDF & Email
 

The ILC’s Clever Compromise on the Validity of Reservations to Treaties

Twitter
Facebook
Google+
LinkedIn
Follow by Email

This post, adapted from our introduction to the symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties in the current issue of the EJIL, looks at one specific topic addressed by the ILC – the rules governing the validity of reservations and the consequences of invalidity. This is not only the most controversial and vexing of all of the issues addressed in the Guide, but also the one where the Guide makes it perhaps most important contribution. Here we not only have a meticulous analysis of a technical topic, but nothing short of an existential story of international law as a unified system as opposed to a set of fragmented sub-regimes. How so? When one reads Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect.

But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went (as exemplified most notably in Human Rights Committee’s General Comment No. 24), should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there manifestly are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation. Human rights protection would thus always be maximized.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation beckoned, and it needed to be resisted.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on The ILC’s Clever Compromise on the Validity of Reservations to Treaties

Sharing Responsibility for UN Targeted Sanctions

Published on February 14, 2013        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Cross-posted from the SHARES Blog

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as KadiNada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Sharing Responsibility for UN Targeted Sanctions

Yet another mala figura: Italy breached non-refoulement obligations by intercepting migrants’ boats at sea, says ECtHR

Published on February 24, 2012        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Francesco Messineo is lecturer at Kent Law School, Canterbury.

For a country so obsessed with the bella figura (loosely translated as ‘making a good impression’), these are not good days for Italy – at least as far as international law is concerned. Only a few weeks after having been told by the International Court of Justice that its Court of Cassation had misapplied rules on state immunity against Germany, the government found itself in the position of having to rely on those same rules against India in an intricate case involving Italian soldiers allegedly killing unarmed fishermen off the coast of Kerala. On this occasion, the Italian Minister of Justice made some spurious assertions as to the lack of Indian jurisdiction over the killing of its own citizens which have been legally untenable at least since one day in September 1927 (ignore Lotus at your peril…).

 But there is more. Yesterday, the Grand Chamber of the European Court of Human Rights strongly and unequivocally condemned the Italian policy of intercepting migrants’ boats in the Mediterranean sea and returning their unidentified passengers to Libya (Hirsi Jamaa and others v. Italy, 23 February 2012, available here; Hirsi hereinafter). And rightly so – the policy was such a flagrant breach of Italian and European obligations concerning international protection from refoulement that most observers and protection institutions had already unanimously expressed concern. To name but a few, the United Nations High Commissioner for Refugees, the Council of Europe’s Committee for the Prevention of Torture, the European Commission, Amnesty International, and Human Rights Watch had all previously said that such ‘push-back’ operations in the high seas were illegal both under international refugee law and under international human rights law (Hirsi, [33]-[41]).

The Hirsi case arose in the context of the 2007 bilateral anti-immigration cooperation agreement between Libya and Italy which was fully implemented in early 2009. When the policy of interception and rejection at sea was put into effect, it ostensibly achieved some of its stated aims. The Lampedusa ‘reception centre’ was suddenly nearly empty – a very different image compared to previous years (and subsequent events of 2011). In 2009 alone, more than 800 Somali, Eritrean and Nigerian citizens were returned to Libya before even touching Italian soil. They were returned to Tripoli without regard for the fact that, as unwanted migrants in Lybia, many of them faced a real risk of torture, physical violence, rape, indefinite detention in overcrowded and unhygienic conditions, as well as further expulsion towards their countries of origins. (Hirsi, [101]-[109]).

The applicants in Hirsi were 11 Somali and 13 Eritrean citizens belonging to a group of about two hundred migrants intercepted on 6 May 2009 about 35 nautical miles south of Lampedusa by the Revenue Police (Guardia di Finanza) and swiftly transferred to Tripoli on Italian military ships. None of them was identified by Italian authorities before being handed over to Libyan authorities. When ordered to board the Italian military ships, the migrants were told that they were being transferred to Italy. Two of them died in unknown circumstances after their arrival in Libya. Some of the others were granted refugee status by UNHCR in Tripoli. One of them was granted refugee status in Italy after making a second successful attempt at crossing the Mediterranean sea. It seems undisputed that they were genuinely in need of international protection.

There are three crucial reasons why Hirsi is a fundamental decision. The first is that it clarified that the Court’s Soering jurisprudence on non-refoulement under Article 3 ECHR also applies in the high seas. This is bound to have important consequences not only for the debates over the interpretation of the term ‘jurisdiction’ in Article 1 ECHR, but also, arguably, for the analogous long-standing debate over the applicability of non-refoulement obligations arising from the Geneva Convention on Refugees in the high seas. Secondly, it is only the second time (after Čonka v. Belgium, no. 51564/99, 2002) that the Court finds a State to have breached Article 4 of Protocol 4 ECHR, which prohibits the ‘collective expulsion of aliens’.  In order to reach such a conclusion, the Court had to interpret the term ‘expulsion’ somewhat counter-textually. Thirdly, Hirsi stands as a landmark judicial reaffirmation of the long-standing jurisprudence of the Court on the protection of migrants from the risk of torture and inhuman treatment, and must be read in the context of European migration policy. I will very briefly address these three questions in turn.

  Read the rest of this entry…

Print Friendly, PDF & Email
 

Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum

Published on February 21, 2010        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Self-defense in response to armed attacks by non-state actors is undoubtedly one of the most interesting – and controversial – issues in modern international law. It is of great practical relevance, as for instance, with the ongoing use of drones for the targeted killings of suspected terrorists (a question I’ve discussed here), and has attracted a great deal of scholarly attention. Lindsay Moir has just published a book with Hart/Oxford that I’m sure will provide a strong contribution to the field. I would particularly like to draw our readers’ attention to the recent discussion in the EJIL provoked by Christian Tams’ excellent article on the use of force against terrorists, with responses by Federico Sperotto and Kimberley Trapp, and a rejoinder by Christian.

In this post, I would like to add a few thoughts on how the indeterminacy of state practice and opinio juris has caused an indeterminacy in the law, which I don’t think can be denied or removed by any legal analysis, no matter how exhaustive and competent.

Read the rest of this entry…

Print Friendly, PDF & Email
 

The Obligation to “Extradite or Prosecute” is not an Obligation to “Prosecute or Extradite”

Published on February 23, 2009        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Joanna Harrington is Associate Professor of Law, University of Alberta, Canada. Her Phd obtained from the University of Cambridge dealt with extradition and human rights. From 2006-2008, she was on secondment to the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that capacity, she, among other things, was a member of the Canadian delegation to the UN General Assembly for meetings of the Sixth (Legal) Committee dealing with the work of the International Law Commission.

Dapo’s post on the case in the ICJ between Belgium and Senegal highlights the real issue in the case, which is this question of whether international law “obliges” prosecution.

One aspect of the ILC’s recent work on “Extradite or prosecute” that has attracted my own interest is the Special Rapporteur’s description of this obligation as a choice, an “either/or” option for States, thus equating “extradite or prosecute” with “prosecute or extradite” (the latter being the “obligation” now invoked by Belgium).

In the very treaties that the Special Rapporteur has cited in his reports, the actual wording of the treaty provisions imposes an obligation to extradite, and IF that does not occur, THEN an obligation arises to submit the case for prosecution. In other words, there is a condition within the treaty-based provision, which the shorthand reference to “extradite or prosecute” does not convey, and which does not mean that we can look to these treaty obligations on “extradite or prosecute” to substantiate a customary obligation to “prosecute or extradite”. We can’t just flip the phrase. This is especially so where the obligation to extradite or prosecute applies to crimes for which one of the state parties to the extradition treaty would not have jurisdiction to prosecute. This happens in extradition treaties between common law and civil law countries, when the latter may invoke the nationality exception to extradition, and in return, is subject to an obligation to submit the case for consideration for national prosecution. The common law country would not be in the same position if it refused to extradite all nationals for all crimes given the territorial nature of much of common law criminal law.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on The Obligation to “Extradite or Prosecute” is not an Obligation to “Prosecute or Extradite”