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The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 
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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

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Why Arbitrate Business and Human Rights Disputes? Public Consultation Period Open for the Draft Hague Rules on Business and Human Rights Arbitration

Published on July 12, 2019        Author: 
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In June 2019, the Draft Hague Rules on Business and Human Rights Arbitration (hereafter, “Draft BHR Arbitration Rules”) was released for global online public consultation, with the consultation period set to end by 25 August 2019.  Judge Bruno Simma chairs the global Drafting Team that has collaborated in developing the draft rules, since the Drafting Team started its work in January 2018 with the support of the City of the Hague.  (Drafting Team Members and Working Group Members all listed here.) The final version of the Hague Rules on Business and Human Rights Arbitration will be published on 10 December 2019.  Before the release of the Draft BHR Arbitration Rules, the Working Group had produced a 2017 concept paper on business and human rights arbitration.  This was followed by the creation and first meetings of the Drafting Team in January 2018; the Drafting Team’s production of its Elements for Consideration in Draft Rules, Model Clauses, and Other Aspects of the Arbitral Process in time for the November 2018 Online Consultation Procedure; the April 2019 meetings of the Drafting Team and the June 2019 publication of the Summary of the Sounding Board Consultationsup to the June 2019 release of the Draft BHR Arbitration Rules.  

As described in the Draft BHR Arbitration Rules:

“The Hague Rules on Business and Human Rights Arbitration provide a set of procedures for the arbitration of disputes related to the impact of business activities on human rights.  The Hague Rules are based on the UNCITRAL Arbitration Rules, with modifications needed to address certain issues likely to arise in business and human rights disputes.  As with the UNCITRAL Arbitration Rules, the scope of the Hague Rules is not limited by the type of claimant(s) or respondent(s) or the type of subject-matter of the dispute and extends to any disputes that the parties to an arbitration agreement have agreed to resolve by arbitration under the Hague Rules.  Parties could thus include business entities, individuals, labor unions and organizations, States and State entities and civil society organizations. Equally, the Hague Rules purposefully do not define the terms “business”, “human rights”, or “business and human rights.” For the purposes of the Hague Rules, such terms should be thus understood at least as broadly as the meaning such terms have under the UN Guiding Principles on Business and Human Rights. However, in the vast majority of cases, no definition of these terms should be necessary at all.

Like the UNCITRAL Rules, the Hague Rules do not address the modalities by which the parties to the arbitration may consent to it nor the content of that consent, which are matters for the parties. Consent remains the cornerstone of business and human rights arbitration, as with all arbitration, and it can be established before a dispute arises, e.g. in contractual clauses, or after a dispute arises, e.g. in a submission agreement (compromis). Model Clauses may provide potential parties with options for expressing their consent to arbitration. In addition, like the UNCITRAL Rules, the Hague Rules do not address enforcement of arbitral awards made under these Rules, which are governed by national law and various treaty obligations, including in most cases the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. While these Rules have been conceived as a uniform set of rules, we acknowledge that the parties remain entitled to exercise their discretion in opting out of certain provisions that do not respond to their specific needs as arising out the dispute at issue. Certain other Model Clauses are being developed in this respect.” (Emphasis added.)

I have served in the Drafting Team under Judge Simma’s leadership since January 2018. My colleagues Martin Doe, Steve Ratner, and Katerina Yiannibas have helpfully crystallized elsewhere several of the main points of innovation contained in the Draft Rules, such as:

“1. provisions on facilitating settlement and mediation, and emphasizing the complementarity of arbitration to such procedures as the OECD National Contact Points system (Articles 1(6), 17(3), 42, and 51)

2. provisions to address the inequality of arms which may arise in such disputes (inter alia, Articles 5(2), 20(4), 24, 27(2), and 27(4));

3. the establishment of the Permanent Court of Arbitration as the default appointing authority, given its intergovernmental nature and experience in business and human rights disputes (Article 6);

4. procedures for multiparty claims and joinder by third parties (Article 17-bis);

5. a procedure for the early dismissal of claims manifestly without merit, developed on the basis of similar procedures in the ICSID, SIAC, SCC, and HKIAC Rules (as well as the proposed new ICSID Rules) (Article 23-bis);

6. provisions making the arbitral tribunal’s power over interim measures more robust, and at the same time more flexible (Article 26);

7. an emergency arbitrator mechanism elaborated on the basis of the ICC and SCC Rules (Article 26-bis);

8. specialized evidentiary procedures drawn up on the basis, inter alia, of the IBA Rules and Rules of the International Criminal Court, among others (Articles 27, 28, and 30(3));

9. measures to protect the identity of parties, counsel, and witnesses where such protections are warranted by the circumstances of the case, while ensuring due process is maintained for all parties (Articles 17(5), 28(3), and 37(5));

10. provisions on transparency and third-party participation (Articles 24-bis and 33-38);

11. tailored provisions on remedies in the business and human rights context (Article 40);

12. rules on applicable law that enhance flexibility and party autonomy (Article 41);

13. rules to protect the public interest in the case of confidential settlements (Article 42(1));

14. nuanced rules in respect of costs and deposits that encourage the tribunal to sensitive to the interests of access to justice (Articles 46-49);

15. an expedited arbitration procedure for small claims (Article 52); and

16. a Code of Conduct that reflects the highest standards for independence and impartiality in international dispute resolution (Annex).”

In this post, I do not aim to provide an authoritative commentary on the Draft Rules (which is exactly what our global online consultation procedure is for).  Rather, and notwithstanding the explicit caveat drawn by the Drafting Team above on leaving the modalities and content of consent to arbitration to the parties, I instead offer my personal observations to examine the essence of main criticisms (see public comments of the Columbia Center for Sustainable Investment here as well as a few questions and comments I received at Harvard Law School in April 2019), directed against having the BHR Arbitration Rules in the first place: 1) whether companies and human rights victims would even consent to arbitration; and 2) if they do consent, whether one should view that consent with skepticism as to the authenticity of arbitration as a mode of access to justice for human rights victims.  The gist of my argument is this: while the BHR Arbitration Rules will never purport to be the exclusively prescribed mechanism for human rights victims of transnational business conduct and neither does it presume to displace State-based judicial or non-judicial remedies, against the realities of a continuing limited universe of legally binding human rights recourse against the impacts of private transnational activities, we cannot afford to close off the arbitral option either. As human rights practitioners well know, no single dispute resolution mechanism for human rights disputes against transnational business is perfect, and even recent national court victories in Lungowe v. Vedanta (as spearheaded by my BHR Drafting Team colleague Richard Meeran of Leigh Day) depend on the jurisdictional openness of a State’s judicial system to transnational tort claims.  The question, in my view, thus has to be reframed away from “why international arbitration?“, to “why not also international arbitration?“.

Read the rest of this entry…

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Deep Seabed Mining in the Area: is international investment law relevant?

Published on July 10, 2019        Author: 
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The last decade has seen a renewed interest in the commercial exploitation of deep seabed minerals located beyond national jurisdiction. However, the respective responsibilities of deep sea miners and of their sponsoring states in this process have not been clarified fully. This short piece argues that international investment law is part of the legal framework applicable to the relationship between the deep sea miner and the state sponsoring it. More specifically, it attempts to demonstrate that deep sea mining operations can constitute a foreign-owned investment within the territory of a host state. Thus, when accepting to sponsor deep sea mining activities, states need to be mindful of the additional disciplines imposed by international investment law. 

The seabed beyond national jurisdiction (named as the “Area” by UNCLOS) is known to contain valuable mineral resources including copper, nickel, zinc and rare earth metals which have become particularly valuable because of recent technological innovations. The International Seabed Authority has awarded twenty-nine exploration contracts to a variety of state and private corporate bodies for vast zones in the Pacific and Indian Oceans. Foreign capital has become increasingly involved in this economic activity. Thus, Nauru Ocean Resources, a Nauruan entity which was granted an exploration contract in 2011, is a subsidiary of the Australian corporation Deepgreen Mineral Corp. UK Seabed Mineral Resources is a subsidiary of the well-known Lockheed Martin. However these activities are controversial and there exist glaring gaps in the scientific knowledge of the ecosystems where deep sea mining is supposed to take place. Read the rest of this entry…

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Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Published on July 4, 2019        Author:  and
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In the recent judgment of the European Court of Human Rights (the Court) in Ilgar Mammadov v Azerbaijan  (Mammadov 46(4)) examined under Article 46(4) infringement proceedings, the Grand Chamber found that Azerbaijan had failed to comply with the Court’s original judgment in Ilgar Mammadov (Mammadov No.1) by refusing to release political activist Ilgar Mammadov, who was arrested on politically motivated charges (in violation of a right to liberty and security under Articles 5 and the  prohibition to restrict rights for purposes other than those prescribed by the Convention under Article 18 of the Convention).

This case is not only novel in being the first to be considered under infringement proceedings (see blogs by Başak Çali and Kanstantsin Dzehtsiarou), but is also highly significant for the Court’s approach to the implications of politically motivated proceedings.  Until now the Court has been reluctant to clarify its position on whether trials and convictions can be explicitly held to be in ‘bad faith’ under Article 18 of the Convention. We argue in this blog that the Grand Chamber in this case (relating to Mr Mammadov’s arrest and pre-trial detention), went substantially further than the Chamber in the second case of the same applicant, Mammadov No. 2 (relating to his trial and conviction), and has paved the way for the Court to finally open the door to the applicability of Article 18 to a right to fair trial under Article 6, or risk incoherence. 

The Court’s approach so far to Article 18

Article 18 of the Convention provides that ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ There is debate about whether the wording of the provision limits its applicability to ‘restricted’ rights under Articles 5 and 8-11 of the Convention (see below). Read the rest of this entry…

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The ESCR Revolution Continues: ILO Convention No. 190 on the Elimination of Violence and Harassment in the World of Work

Published on June 28, 2019        Author: 
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On 21 June 2019, the International Labour Organization (ILO) adopted the landmark ILO Convention No. 190 (Convention concerning the Elimination of Violence and Harassment in the World of Work).  The labour standards set in this Convention were negotiated over a two year period by ILO member governments, workers’ representatives, and employers’ organizations. The adoption of Convention No. 190 is itself revolutionary, considering that an estimated around 500 million working-age women  live in countries are reported not to have any legal protections against harassment at work. The World Bank reported in 2018 that “in 59 countries, women are not legally protected from workplace sexual harassment.  The lack of legal protection is observed in 70% of the economies in the Middle East and North Africa, half (50%) in East Asia and the Pacific, and one-third (33.3%) in Latin America and the Caribbean.”

In this post, I examine the key landmark detailed provisions of ILO Convention No. 190, and why they present significantly higher protections than the more rudimentary and general provisions in the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the protections against sexual harassment indicated in the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW).  In my view, ILO Convention No. 190 largely closes the global regulatory gap on workplace sexual harassment, not just by repeating ICESCR and CEDAW protections, but by adopting the most sweeping application of these protections (and even more substantive protections) to all the foreseeable permutations and changing employment arrangements today in the world of work.  Institutionally, the adoption of ILO Convention No. 190 also formally opens the door for ILO’s regular supervisory system to ensure this treaty’s implementation by States ratifying ILO Convention No. 190, including special procedures under the ILO Constitution, such as the complaints procedure (Articles 26 to 34 of the ILO Constitution) enabling any ILO Member State to file a complaint with the ILO if it finds that any other ILO Member State is not “securing effective observance of any Convention which both have ratified”.  The ILO Governing Body can refer the complaint to a Commission of Inquiry for investigation.  If the respondent ILO Member State does not accept the recommendations of the Commission on Inquiry, the ILO can propose to refer the dispute to the International Court of Justice.  The expansive protections against workplace sexual harassment afforded in ILO Convention No. 190 to all persons (including women) could thus also be more strongly protected in the international legal system as well as in domestic legal systems.  

In the age of MeToo and the increasing global awareness that vulnerabilities to workplace sexual harassment are highest in non-traditional work settings and arrangements where power imbalances are sharpest, ILO Convention No. 190 places human dignity at the center of the global regulatory paradigm.  It will be much harder for workplace sexual harassers and those who commit violence at the workplace to escape and avoid legal responsibility anywhere in the world.

Read the rest of this entry…

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Clarifying the Contours of the Crime of Starvation

Published on June 27, 2019        Author:  and
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The Lack of Prosecutions

Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.

The crimes that have oc­cupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The F Word – The Return of Famines

Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. Read the rest of this entry…

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Interests of Justice? The ICC urgently needs reforms

Published on June 11, 2019        Author: 
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The demands for an “independent evaluation” through a small group of experts, formulated by four former presidents of the Assembly of State Parties of the International Criminal Court (ICC) and accompanied by several critical blogs (see, inter alia, here, here, here and here) is the outcome of several controversial court decisions and the Court’s manifest problem in its decision-making process, i.e., its serious governance problems.

Probably the most controversial decision, made on 12 April 2019, concerns the rejection by Pre-Trial Chamber (PTC) II of the Prosecutor’s application of the initiation of a (formal) investigation into the Afghanistan situation involving crimes allegedly committed by the Taliban, Afghan and US military forces. The PTC based its decision on a broad interpretation of the ambiguous concept of “interests of justice” (Art. 53(1)(c) Rome Statute) and the expected lack of cooperation by Afghanistan and the USA, allegedly resulting in limited chances of a successful investigation. Thereby the Chamber converts the interests of justice concept into a utilitarian efficiency clause which is predicated on the possible success of the proceedings. Not only is this difficult to reconcile with the rationale of the said concept but also incompatible with the wording of Art. 53(1)(c) which links the “interest of justice” to, inter alia, the gravity of the crime and the interests of the victims. Yet, both of these criteria speak for the opposite result than that reached by the Chamber, namely the opening of the formal investigation. For the gravity of the crimes is acknowledged by the Chamber itself and the victims’ interests are reflected by the submission of information by hundreds of them during the preliminary examination. If a Chamber considers that despite the existence of gravity and interests of victims “an investigation would not serve the interests of justice”, i.e. “nonetheless” (Art. 53(1)(c)) the existence of these criteria, it must show that there are more important “substantial reasons” which displace the prima facie interests of justice (derived from gravity and victims’ interests) in favour of opening a formal investigation. In other words, while the term “nonetheless” makes clear that there may be countervailing considerations which may speak against the opening of an investigation despite gravity and victims’ interests, these countervailing considerations must be thoroughly substantiated and, at any rate, do not turn the interests of justice clause into a mere, free floating policy factor which gives a Chamber an unfettered discretion (see also Ambos, Treatise International Criminal Law Vol. III, 2016, p. 390). The present Chamber fails to grasp these complexities and therebyshows a lack of sensibility with regard to the “interests of justice” concept. Thus, it is not surprising that the decision has met serious criticisms in the international criminal law blogsphere (see here, here, here and here) and the Prosecutor filed a leave to appeal request on 7 June 2019. The most recent Appeals Chamber decision from the 6 May 2019, denying the personal immunity of the then Sudanese President Al-Bashir and interpreting the non-immunity rule of Art. 27 Rome Statute as one of customary law, has also received some criticism (see here and here) but ultimately deserves support (see here and here) since it confirms the historical (Nuremberg) trend of non-immunity in international criminal justice. Read the rest of this entry…

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A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

Published on June 6, 2019        Author: 
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On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute.  In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)  

The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken  by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.

In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. Read the rest of this entry…

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Delineating the Exclusivity of Flag State Jurisdiction on the High Seas: ITLOS issues its ruling in the M/V “Norstar” Case

Published on June 4, 2019        Author: 
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On 10 April 2019, the International Tribunal of the Sea (ITLOS) gave its judgment in the long-awaited – though somewhat quietly received – M/V “Norstar” (Panama v Italy) case. The Tribunal ruled (by 15 votes to 7) that by arresting and detaining the Panamanian-flagged vessel, the M/V “Norstar”, Italy had violated Article 87(1) of the 1982 UN Convention on the Law of the Sea (UNCLOS) by undermining the vessel’s freedom of navigation. This is the first time that Article 87 has been in direct contention before an international tribunal, and in ruling that Italy contravened the principle the judgment arguably buttresses a quite expansive reading of the exclusive flag state jurisdiction principle under Article 92 UNCLOS.

Whilst the case had previously thrown up interesting jurisdictional and procedural questions at the preliminary objections stage – discussed elsewhere by Mirko Forti here – in this post I will confine my discussion primarily to the ruling on freedom of navigation, insofar as the Tribunal found that Italy’s attempt to exert prescriptive jurisdiction over what were otherwise lawful activities on the high seas violated Article 87(1). In doing so, I will highlight how the Tribunal’s understanding of the exclusive flag state jurisdiction principle arguably runs counter to a notable trend in the academic literature, which was reflected in a somewhat forceful seven-judge dissenting opinion, to treat the principle in a much more circumscribed way. I will also comment on the way in which Italy’s argument in the case seems to put it somewhat at odds with its position in the ongoing Enrica Lexie arbitration – discussed previously by Douglas Guilfoyle here, and Hari Sankar here.

I will first set out the background to and facts of the case before turning to discuss the contentious position on high seas jurisdiction. I also offer a few final thoughts on the contrasting, arguably conflicted positions adopted by Italy in this case versus its position in Enrica Lexie. Read the rest of this entry…

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The Distinction between Military and Law Enforcement Activities: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine V. Russian Federation), Provisional Measures Order

Published on May 31, 2019        Author: 
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International Tribunal for Law of the Sea (ITLOS) issued a provisional measures order to Russian Federation to release three Ukrainian naval vessels and their servicemen on 25 May 2019. In deciding that the Annex VII arbitral tribunal would have prima facie jurisdiction as required under Article 290(5) of United Nations Convention on Law of the Sea (UNCLOS), the Tribunal held that the case was not “disputes concerning military activities” as provided under Article 298(1)(b) (see Kraska).

This is an important decision considering that there is no settled definition of “military activities” which allows state parties to be exempted from the compulsory dispute settlement procedure under UNCLOS. This is the first time that ITLOS held its interpretation on the former half of Article 298(1)(b) (while the latter half was dealt in the provisional measures order in Arctic Sunrise, para.45), and South China Sea arbitration case of 2016 before Annex VII Arbitral Tribunal remains the only precedent where a third-party dispute settlement institution held its interpretation of the same text.

There seems to be a common understanding that in this order, the Tribunal interpreted the scope of the “military activities” under Article 298(1)(b) quite narrowly, if not diminished, and thereby lowered its jurisdictional bar. While assessments of this decision have already been posted (see Kraska, Schatz), this post adds some comments on the legal framework that the Tribunal relied upon.

Preliminary Remarks

One thing that should be kept in mind is that, since it is a provisional measures order, it suffices if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, and need not definitively satisfy itself that the tribunal has jurisdiction over the dispute (Order, para. 36; see also ARA Libertad, para. 60). Judge Lijnzaad’s commented that the questions of the applicable law and of whether the issues raised are solely to be understood as being related to the interpretation and application of UNCLOS were left to Annex VII arbitral tribunal at a later stage, as they are “matters that go well beyond the prima facie analysis of a request for provisional measures (Declaration, Lijnzaad, para.8).” Read the rest of this entry…

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