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Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

Published on May 21, 2019        Author:  and
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The recent ICJ Advisory Opinion concerning the Chagos Islands has, understandably, received a great deal of attention. The controversies surrounding the more political elements of the decision have dominated headlines. However, in this blog post, we want to focus on one particular aspect of the Court’s decision. Tucked away at the end of the opinion, paragraph 180 recognises the erga omnes character of the obligation to respect self-determination and finds that there exists an obligation, binding on all states, to cooperate with the UN to complete the decolonisation of Mauritius:

‘180. Since respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right […]. The Court considers that, while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect. As recalled in the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle” […].’ (emphasis added).

This is followed by confirmation in paragraph 182 and in operative paragraph 5 (with only Judge Donoghue dissenting, on unrelated grounds), that ‘all Member States must co-operate with the United Nations to complete the decolonization of Mauritius.’

Since its recognition in 1970 (Barcelona Traction [33]-[34]), the concept of erga omnes has been the subject of heated academic debate and has surfaced a handful of times in ICJ judgments, opinions, and arguments before the Court (e.g. here [29], here [64], and here [15]). However, the notion of erga omnes remains surrounded by a considerable lack of conceptual clarity. There is frequent conflation, even at the level of the ICJ, between this and other international legal concepts. Paragraph 180 of the Chagos opinion provides both a well-needed clarification and a potential source of confusion in this regard. Read the rest of this entry…

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Application of the CERD Convention (Qatar v UAE) and “Parallel Proceedings” before the CERD Committee and the ICJ

Published on May 17, 2019        Author: 
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Last week, the International Court of Justice held hearings to consider the United Arab Emirates request for provisional measures in the Case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. UAE).  The UAE’s requests are unusual in at least two ways. First these requests constitute the second request for provisional measures in the case, with the first requests considered by the Court last year. Second, and more unusually, this is a rare instance of the respondent state (and one which challenges the jurisdiction of the Court to hear the case) requesting provisional measures. 

The UAE has made requests under four grounds, but I would like to focus on the first, that: ‘(i) Qatar immediately withdraw its Communication submitted to the CERD Committee [the Committee on the Elimination of Racial Discrimination] pursuant to Article 11 of the CERD on 8 March 2018 against the UAE’. The request raises the question of whether international law has developed a principle of lis pendens such that parallel proceedings before different international bodies should be disallowed. It also engages the issue in previous caselaw of whether the preconditions of Article 22 are alternative or cumulative.

Two mechanisms for inter-state disputes under the CERD

The International Convention on the Elimination of All Forms of Racial Discrimination (the CERD Convention) contains two mechanisms for inter-state “complaints”. First, Articles 11-13 provide for inter-state communications whereby one state party, considering that another state party is not giving effect to the provisions of the Convention, may bring the matter to the attention of the CERD Committee. Second, Article 22 provides that any dispute between two or more states parties with respect to the interpretation or application of the Convention, which is not settled by negotiation or by the procedures expressly provided for in the Convention, can be referred to the ICJ for decision. Read the rest of this entry…

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Symposium on the Genocide Convention: Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ?

Published on May 16, 2019        Author: 
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Editor’s note: This is the final post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the other posts in this symposium here and here.

This post questions the findings of the International Court of Justice (ICJ) in the 2007 Bosnia v. Serbia case, according to which the duty to prevent a genocide is an obligation of conduct that can be assessed only after the occurrence of a genocide. The post first briefly explores the distinction between obligations of conduct and obligations of result on the basis of the International Law Commission (ILC)’s works and judicial practice. The post moves on to emphasise some inconsistencies in the ICJ’s reasoning in relation to the occurrence of a genocide as a prerequisite for the violation of the duty to prevent genocide. Finally, the post advances some possible explanations of the role of the event ‘genocide’ in relation to the duty to prevent genocide.

The 2007 ICJ’s Decision

In the 2007 Bosnia v. Serbia case, the Court for the first time declared that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention (see my reflections here). According to the Court:

It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. (para 430, emphasis added)

The Court went on to affirm that a breach of the duty to prevent genocide can be assessed only after a genocide has occurred. The Court took the view that:

a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. […] If neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen. (para 431, emphasis added)

However, the view that a genocide must occur before a State’s compliance with the duty to prevent genocide can be assessed ignores the fact that this duty is a due diligence obligation of conduct. This conclusion is supported by the analysis of the evolution of the notion of obligations of conduct. Read the rest of this entry…

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An Analysis of the Use of ICJ Jurisprudence in Investor-State Dispute Settlement

Published on May 13, 2019        Author: 
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Last October 2018, the International Court of Justice (“ICJ” or “the Court”) issued its merits judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In a brief passage, the Court summarily dismissed Bolivia’s argument that the doctrine of “legitimate expectations” exists in general international law outside the context of fair and equitable treatment clauses. Despite the brevity of the Court’s analysis – and the minor importance of the legitimate expectations issue in that case – this finding drew attention from media outlets dedicated to investor-State dispute settlement (“ISDS”), including IAReporter. That the discussion of legitimate expectations in the Bolivia v. Chilejudgment was considered newsworthy in the ISDS sphere is a reflection of the importance that ISDS practitioners place on ICJ jurisprudence. As Professor Alain Pellet observed in a 2013 lecture, “[n]ot only do … investment tribunals… refer to the jurisprudence of the World Court, but they show a particular deference to it.”

There is some evidence, discussed below, to suggest that ISDS tribunals have referred to ICJ jurisprudence with increased frequency in recent years. Moreover, as ICJ President Abdulqawi Ahmed Yusuf highlighted in his October 2018 speech to the U.N. General Assembly, the Court today is particularly busy. There may thus be even more opportunities for jurisprudential cross-pollination in the near future. Now is an opportune time to consider why, when, and how investor-State tribunals refer to ICJ jurisprudence.

Read the rest of this entry…

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Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
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On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

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ICJ Delivers Chagos Advisory Opinion, UK Loses Badly

Published on February 25, 2019        Author: 
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Earlier this afternoon the ICJ delivered its Chagos advisory opinion. Briefly, the Court found that the separation of the Chagos archipelago from the British colony of Mauritius was contrary to the right to self-determination and that accordingly the decolonization of Mauritius was not completed in conformity with international law. As a consequence, the Court found that the UK’s continuing administration of the archipelago, which includes the largest US naval base in the Indian Ocean, Diego Garcia, is a continuing internationally wrongful act, which the UK was under an obligation to cease as soon as possible. The Court was almost unanimous – its decision not to exercise discretion and decline giving an opinion was made by 12 votes to 1, while its findings on the merits were made by 13 votes to 1 (Judge Donoghue dissenting). The AO and the various separate opinions is available here.

Here are some key takeaways.

Read the rest of this entry…

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Anticipating the Chagos Advisory Opinion: The Forgotten History of the UK’s Invocation of the Right to Self-Determination for the Sudan in the 1940s

Published on February 19, 2019        Author:  and
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What does 2019 have in store for international law? Little seems predictable, but 2019 is likely to be the year in which the International Court of Justice will for the first time in two decades pronounce on the law of self-determination. In the Kosovo Advisory Opinion, the ICJ managed to sail around this spiky fundamental concept of international law, but it will be harder to avoid in the advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius. This case puts self-determination front and centre.

One of the questions that the ICJ may have to address is that of the legal status of self-determination as early as 1965, including Great Britain’s argument that it had, until then, consistently objected to references to a ‘right’ of self-determination. Influential legal literature underlines the trickiness of that question, as it locates the birth of self-determination as a legal right exactly in the period 1960-1970, but without pinpointing a specific birthday. 

However, legal historiography has thus far omitted a case that suggests that self-determination was imbued with legal meaning, by Great Britain itself, at an earlier stage, namely in the 1940s. Our forthcoming article in the British Yearbook of International Law shows that during the UN Security Council’s second year of operation, in 1947, the UK invoked the right of self-determination of another people, the Sudanese, as their legal entitlement, in its effort to counter Egyptian claims on the Sudan. While others have written brilliant histories of how the Sudan emerged into statehood, our article aims to restore the Sudan case to the legal history of self-determination, including the UK’s role in this. Thus, even if popular historical imagination envisages self-determination as a revolutionary ideal championed by the colonized but denied by the colonizers, in the case of the Sudan, the British propagated the Sudanese right to self-determination, albeit, as we argue, as an emanation of, not a deviation from, their own colonial predispositions. Read the rest of this entry…

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Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state

Published on November 22, 2018        Author: 
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Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on this blog (see here and here) and elsewhere. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’. Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.

When a treaty uses the word ‘state’

The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship.  We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. Read the rest of this entry…

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The Situation of the Rohingya: Is there a role for the International Court of Justice?

Published on November 14, 2018        Author: 
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In April 2017, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to investigate alleged human rights abuses by military and security forces. The Fact-Finding Mission issued an initial summary reportin August 2018, followed by a 444-page report of detailed findingsin September.

Among other things, the Fact-Finding Mission found that after an armed group called the Arakan Rohingya Salvation Army launched a series of small-scale attacks against government military outposts on 25 August 2017, a government campaign aimed at Rohingya communities in Rakhine State resulted in at least 10,000 deaths and caused 725,000 Rohingya to flee, mainly to neighbouring Bangladesh. The Myanmar authorities termed their actions “clearance operations” meant to eliminate a terrorist threat. The Fact-Finding Mission described a campaign of indiscriminate killing and maiming, rampant sexual violence, and widespread destruction of Rohingya villages—a “human rights catastrophe”, but one long in the making because of a history of state-sanctioned discrimination against the Rohingya, a Muslim minority in a predominantly Buddhist country.

The Fact-Finding Mission (which Myanmar refused to admit into its territory) concluded that the actions of Myanmar’s forces constituted crimes against humanity and war crimes. It also found sufficient evidence to warrant the investigation and prosecution of senior officials for the crime of genocide. Among other recommendations, the Fact-Finding Mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) (Myanmar is not a party to the Rome Statute) or to establish an ad hoc international criminal tribunal. (After the Fact-Finding Mission issued its August report, a Pre-Trial Chamber of the ICC determinedthat the ICC has jurisdiction over the alleged deportation of Rohingya individuals from Myanmar to Bangladesh, and possibly over additional other crimes; ICC prosecutor Fatou Bensouda has since announceda preliminary examination into the situation.) The Fact-Finding Mission also recommended targeted sanctions against government officials and an arms embargo. The Chair of the Fact-Finding Mission, Marzuki Darusman, addressed the Security Council last month (over the objections of China and Russia) to reiterate these conclusions. In the meantime, the UN Human Rights Council responded by establishing a mechanismto collect and preserve evidence of international law violations in Myanmar (discussed here).

The emphasis of the Fact-Finding Mission and the UN Human Rights Council on individual criminal accountability is unsurprising. Many other fact-finding missions and commissions of inquiry that have investigated large-scale human rights violations have been similarly focused—a reflection of the extent to which international criminal law has become the central or even dominant narrative of the international response to so many crises. Indeed, advocacy groups have long campaigned for an ICC-focused response to the Rohingya crisis, alongside the urgent need to provide humanitarian assistance to the thousands of Rohingya refugees now living in difficult conditions in camps across the border in Bangladesh. (A dealnegotiated by UNHCR and UNDP with Myanmar in May 2018 to facilitate the repatriation of the Rohingya has been widely criticizedand remains unimplemented.)

The increased focus on Myanmar in 2018 is to be welcomed. UN officials and some governments have already characterized the conduct of the Myanmar authorities as acts of genocide (see herehere, here, and here), and the reputation and credibility of Myanmar’s de facto leader, the Nobel peace laureate Aung Sung Suu Kyi, has seen a rapid and precipitous decline (see here, here, and here). Yet amidst all of these developments, the almost singular focus on an international criminal justice response to the plight of the Rohingya is striking. The idea of seeking legal accountability at the level of State responsibility has gone largely unmentioned, a further example of what Laurel Fletcher has called the “effacement of state accountability for international crimes”. In that vein, the remainder of this post will consider the prospects for a case against Myanmar at the International Court of Justice (ICJ). Read the rest of this entry…

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Failing the Hague Stress Test

Published on November 6, 2018        Author: 
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On 25 October 2018, the President of the International Court of Justice, Judge Abdulqawi A. Yusuf, made an apparently ordinary announcement in his speech to the United Nations General Assembly. In light of the increasing workload of the Court, Judge Yusuf reported towards the end of his speech, “[m]embers of the Court have come to the decision, last month, that they will not normally accept to participate in international arbitration.” This decision appeared on its face simply to add clarity to the mandate set out in the Statute of the Court that judges may not “engage in any other occupation of a professional nature.” But Judge Yusuf went on with his remarks to specify that “[i]n particular, [members of the Court] will not participate in investor-State arbitration or in commercial arbitration.” Neatly separated from this withdrawal, Judge Yusuf confirmed that the Court will “if the circumstances so warrant, authorize its Members to participate in inter-State arbitration cases.”

Here was the signal international legal observers had been waiting for. The reaction on social media belied the apparently ordinary nature of the statement. The Court had taken a stance on one of the partisan issues of international legal politics – the hot potato of investor-State arbitration.

The events surrounding Judge Sir Christopher Greenwood’s re-election bid to the Court brought that hot potato to the Court’s doorstep. Days after Judge Greenwood conceded defeat in his re-election bid to the Court, a think tank associated with opposition to investor-state arbitration, published a study that called out “moonlighting” by ICJ judges in investor-state arbitrations. One of the judges the think tank focused upon was Judge Greenwood. Its reporting more than implied that Judge Greenwood’s work as arbitrator was a further reason speaking against his re-election. One can only imagine that with the political opposition to investor-State arbitration in Europe and elsewhere, this implication landed with rather a loud thud at the Court. The context thus may have been one of judicial acquiescence to the political headwinds rather than one that was purely a question of workload. After all, while resigning politicians do certainly like to spend more time with their families, this desire is hardly if ever the whole story behind their departure. So, too, the Court’s reasoning appears a little too casual when viewed in context. In fact, this topic was one of the most hotly debated issues at the recent Oxford Investment Claims Summer Academy convened by the Oxford University Press at Kellogg College this July. Read the rest of this entry…

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