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ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

Published on November 11, 2017        Author: 

On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 13. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. Read the rest of this entry…

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Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Published on November 3, 2017        Author: 

On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had. Read the rest of this entry…

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Oppenheim’s International Law: United Nations

Published on October 16, 2017        Author: 

October 2017 marks the publication of a new two-volume work under the prestigious ‘Oppenheim’ banner, Oppenheim’s International Law: United Nations. It traces the evolution of the United Nations and the legal issues it daily faces. It is also an essential tool for practitioners as they address the legal problems of today at the United Nations.Image result for oppenheims international law united nations

In 1992, Sir Robert Jennings and Sir Arthur Watts, to great acclaim, had published the 9th edition of Oppenheim’s International Law, Volume I: Peace. It had taken them long years to prepare. The eighth edition, prepared by Sir Hersch Lauterpacht, had been published in 1955.

In 1994, I received an unexpected letter from Sir Robert Jennings and Sir Arthur Watts. In it they informed me that in the Preface to the 8th edition of Oppenheim, it had been envisaged that one day a volume of that great work would need to address the new phenomenon of international organizations. A new volume would be required for this work, which they invited me to undertake.

I was, of course, hugely honoured by this invitation, though I realised from the outset that the amount of work it would involve was enormous. I was at that time Professor of International Law at the London School of Economics and Political Science, in practice at the Bar as a silk, and a member of the UN Human Rights Committee under the International Covenant on Civil and Political Rights. There seemed not a spare moment, and I was increasingly wondering how I could continue both as an academic and at the Bar, and whether one of these strands to my life should go. But this suggestion that I should prepare a new Oppenheim was too great an honour to decline.

Apart from pressures of work and time, there was another aspect that worried me greatly. By the early nineties there were already some wonderful books on legal aspects of international organizations. In particular, Henry G. Schermers’ International Institutional Law, seemed to me to have fully covered the ground, in a scholarly and comprehensive way.

Jennings and Watts had a short reply to that anxiety: ‘This is not to be a book about constitutions, statutes and rules’, they said. ‘It is to be about how things really are’. Legal reality, they explained, is what is required for a practitioners’ book – and what has distinguished Oppenheim from other legal texts is that it is a practitioners’ book (albeit of interest to academics). Read the rest of this entry…

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Offshore Processing and Complicity in Current EU Migration Policies (Part 1)

Published on October 10, 2017        Author:  and

It has certainly been a busy summer in terms of developments in European Union (EU) migration policies. From an intensification of cooperation between Italy and the Libyan Coast Guard to intercept and ‘pull back’ migrants at sea; to a controversial Code of Conduct for non-governmental organisations involved in migrants’ rescue operations at sea; and the further mobilisation of funds for the EU-Africa Trust Fund, things have been all but calm on the Southern European front.

Together with images of a right-wing Defend Europe ship sailing the Mediterranean to track the activities of humanitarian NGOs, the summer has also left behind renewed plans for offshore processing centres to identify persons in need of international protection outside of the EU. On 27 September 2017, the European Commission presented its new plans for a ‘stronger, more effective and fairer EU migration and asylum policy’, aimed at ‘enhancing legal pathways for persons in need of international protection’. Whilst press releases emphasise the resettlement aspect of the plan, a closer analysis of the official documents and related policies issued throughout the summer, reveals a slightly different picture.

In this first blog post we reconstruct a complex web of EU migration policies that, in our view, indicate a shift towards extraterritorial protection, and more specifically the introduction of a multi-stakeholder mechanism for the offshore processing of asylum claims in the Sahel. Read the rest of this entry…

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Extradition: English Court refuses to extradite alleged génocidaires to Rwanda–will a domestic prosecution follow?

Published on October 2, 2017        Author: 

The Divisional Court of England and Wales has dismissed the appeal of the Government of Rwanda in the high-profile extradition proceedings against five alleged génocidaires in the case of Rwanda v Nteziryayo and ors. The men will not be extradited to Rwanda to stand trial for genocide and it now appears that, if they are to be tried at all, it must be in the UK.

The judgment of the Divisional Court affirmed the decision of District Judge Emma Arbuthnot on 22 December 2015 to discharge the extradition requests on two grounds: double jeopardy–one of the requested persons had been tried in a domestic ‘Gacaca’ court—and article 6 of the European Convention on Human Rights. The Judge accepted the evidence of the requested persons that there was a real risk they might suffer a flagrant breach of their rights to a fair trial if extradited to Rwanda.

The background to this latest decision reveals the evolving measures employed by the international community to promote justice and end impunity for international crimes. 

Following the genocide in Rwanda in 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) which was intended to bring to trial those most responsible for the genocide and other serious violations of law perpetrated in Rwanda. Security Council Resolution 1824, passed on July 2008, called for the completion of the work of the ICTR by 2010. Read the rest of this entry…

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The Partition of India and Pakistan: Lessons on UN Membership in the Event of a Break-Up of a State

Published on August 21, 2017        Author: 

70 years ago today (21 August 1947) the United Nations Security Council adopted Resolution 29 recommending that the General Assembly admit Pakistan to membership of the United Nations. That resolution was adopted a few days after British India was partitioned, and the emergence on 15 August 1947 of the newly independent countries of India and Pakistan. Of the many issues that arose out of the decolonisation of India, one new legal issue was how to deal with membership of the emergent states in the recently created United Nations. The UN was faced for the first time with an issue, which has proved to be a recurring one in the history of the UN: how should the organization deal with the break-up of an existing member? There have since been many cases where a number of states have emerged on the territory of an existing member after a break-up of the member (the most recent cases being Montenegro’s separation from Serbia in 2006 and South Sudan’s separation from Sudan in 2011). In all of these cases, one of the key questions that arises is whether the legal personality of the existing state continues and, if so, whether it may simply retain its membership in the UN despite the break-up. Or alternatively, is the previous state to be taken as no longer existing with all the entities emerging on its territory to be regarded as new states? Where new states have emerged from a UN member should such new states be required to apply anew for UN membership? The principles that emerged from the partition of India, with respect to the membership of India and Pakistan, came to be relied upon in later situations, particularly in the 1990s upon the break up of the Soviet Union, and ultimately also in the case of the former Yugoslavia.

India’s membership of the UN is also interesting because it (meaning British India) was an original member of the United Nations and had previously been a member of the League of Nations, even though it did not become independent until 1947. It held that membership in the UN despite Articles 3 and 4 of the UN Charter stating that membership in the UN was open to “states”. British India, being a dependent territory, was not a state as a matter of international law before August 1947. However, pre-independence India was not the only entity that was an original member of the UN that was not a state. Read the rest of this entry…

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Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 

On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us. Read the rest of this entry…

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Minnesota Protocol on the Investigation of Unlawful Death Gets a New Life

Published on May 26, 2017        Author: 

The Revised Minnesota Protocol on the Investigation of Potentially Unlawful Death has just been published. It sets out the international human rights and criminal justice standards applicable to national investigations into alleged summary executions and other suspicious deaths, while also providing detailed advice on crime scene investigation and forensic methodology.

The document is highly relevant for human rights lawyers and criminal justice practitioners.  As I also discuss here [pp. 204ff], human rights cases dealing with suspicious killings regularly turn on the quality of the national criminal investigation into the crime. If the investigation was done properly, international human rights mechanisms will typically defer to its findings; if not, they will find a procedural violation of the right to life, even if state responsibility for the killing itself cannot be proven.

The original Minnesota Protocol was prepared in 1991 by a small group of lawyers from that icy state and later published by the United Nations Secretariat. Formally also known as the United Nations Manual on the Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the document has been cited with approval by the Inter-American and European human rights courts.

The just published version of the Minnesota Protocol/U.N. Manual maintains the established brand names. But the text has been completely overhauled by the drafting team around outgoing U.N.  Special Rapporteur on Summary Executions, Christof Heyns (note: the author was not involved). A biopsy of the old and new versions of the Minnesota Protocol goes to show how far human rights law has advanced over the last quarter century. Read the rest of this entry…

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Non-UN Financial Sanctions against Central Banks and Heads of State: in breach of international immunity law?

Published on May 12, 2017        Author: 

Conventional Wisdom Challenged?

Recent years have seen a wide range of non-UN financial sanctions being adopted against States and their instrumentalities, including central banks, as well as against high-level State officials. Prominent examples include the EU and US sanctions against the central banks of Syria and Iran, and the asset freezes against the serving Presidents of Zimbabwe and Syria. In spite of the EU’s firm assertion that its ‘restrictive measures’ “are fully compliant with obligations under international law”, one might be inclined, intuitively, to regard such sanctions as a prima facie breach of international immunity rules (whether or not they qualify as (third-party?) countermeasures is a different story altogether – one which the present post will not touch upon). Thus, given the lack of a general exemption in respect of activities de jure imperii, Castellarin argues that the EU’s financial sanctions against central banks are contrary to State immunity law – a position which is also subscribed to by Thouvenin and Dupont. Others have arrived at the same conclusion in respect of asset freezes targeting Heads of State (see e.g. Pillitu). When discussing the matter with fellow scholars, it seems that the applicability of, and incompatibility with, immunity rules is often taken for granted.

Yet, is this conventional wisdom (if that is what it is) justified? It is quite remarkable to see how, on the one hand, the EU goes to some lengths to insert tailor-made exemptions to asset freezes in order to enable payments to or from diplomatic or consular posts (or exceptions to travel bans to allow officials to participate in international conferences) – even if the practice seems far from consistent –, while at the same time seeing no problems in the imposition of financial sanctions on Syria’s central bank and Head of State. Equally remarkable Read the rest of this entry…

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Methods to Incorporate Human Rights Law into Disaster Prevention and Reduction Strategies

Published on February 28, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Earthquakes, floods, hurricanes, volcanic eruptions and landslides are all natural phenomena that have occurred throughout the history of humankind. This blog reflects on the ensuing crisis in human life, infrastructure, economic stability and ongoing development projects when such events occur. The limited capacity of a State to prepare, respond and rebuild afterwards is what will often turn these events into ‘disasters’ and crisis situations. Thus, disaster is the consequence of a combination of factors: disaster risk arises when hazards (such as earthquakes, floods, hurricanes, volcanic eruptions and landslides) interact with pre-existing physical, social, economic and environmental vulnerabilities. The ‘elements at risk’ may, therefore, refer to exposure of people, buildings, businesses, and infrastructure. This post shows how and why human rights law is an invaluable asset to States and organisations hoping to reduce the risk of disasters. Critically, it analyses methods available to incorporate human rights law into disaster prevention and reduction strategies.

International Disaster Risk Reduction (DRR) Frameworks

Over the past two decades, as the international disaster management agenda has been developed and refined, firstly in Yokohama (Yokohama Strategy and Plan of Action for a Safer World: guidelines for natural disaster prevention, preparedness and mitigation 1994) and then in Hyogo (Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters), the human rights agenda has also undergone a significant shift. Human rights principles are firmly entrenched in the international legal order through the proliferation of human rights courts and institutions. Read the rest of this entry…

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