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Home International Tribunals Archive for category "International Court of Justice"

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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Can’t Fight the Moonlight? Actually, You Can: ICJ Judges to Stop Acting as Arbitrators in Investor-State Disputes

Published on November 5, 2018        Author: 
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The earthquake started in earnest in November 2017. At its epicentre was a report, published in November 2017 by two researchers at the International Institute for Sustainable Development (“IISD“).

In the report, titled “Is ‘Moonlighting’ a Problem? The role of ICJ Judges in ISDS”, researchers Nathalie Bernasconi-Osterwalder and Martin Dietrich Brauch analysed the contents of several public databases of ISDS cases, and found that at least seven judges at the International Court of Justice (“ICJ” or the “Court“) at the time of publishing (and 13 former judges) had worked (or were working at the time of the report) as arbitrators in treaty-based investor state dispute settlement cases during their terms at the ICJ.

Crunching the numbers further, the two IISD researchers looked at the amount of treaty-based cases in which ICJ judges had served as arbitrators. They compared the number against the 817 treaty-based ISDS cases known as of July 2017. The results were surprising: ICJ judges had sat as arbitrators in roughly 10% of all known investment treaty cases during their tenure.

This raises three types of concerns.

First, it seems to contravene the prohibition for ICJ judges to “engage in any other occupation of a professional nature” contained in the Statute of the International Court of Justice (the “ICJ Statute“).

Second, arbitrators are usually paid according to the time (calculated in days or hours) spent working on a case. This means that any ICJ judge who is also appointed as an arbitrator would have an economic incentive to spend more time on the investment treaty case, to the potential detriment of the judge’s Court-related work.

Third, cumulating the roles of ICJ judge and arbitrator (or, as the report called it, “moonlighting”) could potentially impact, or be perceived to impact, the judge’s independence and impartiality. Read the rest of this entry…

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New Restrictions on Arbitral Appointments for Sitting ICJ Judges

Published on November 5, 2018        Author: 
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Editor’s Note: This week, in a trio of posts by Callum Musto, Marie Davoise, and Frederic Sourgens, we facilitate discussion on the nature of the International Court of Justice’s judicial function, and the occasional international arbitration appointments accepted by individual judges of the World Court. In view of H.E. President Yusuf’s October 2018 report to the U.N. General Assembly, what can be expected of the Court with respect to managing future arbitral appointments that could be issued by appointing authorities or party nominations for the Court’s individual jurists – whether in inter-State or mixed arbitral disputes?

On 25 October, in the annual address of the President of the International Court of Justice to the General Assembly, President Yusuf announced that the Court had decided to adopt new restrictions on its sitting Members acting as arbitrators in inter-State and mixed arbitration. He said:

The Court is cognizant of the fact that, while the judicial settlement of disputes offered by the Court is enshrined in the Charter, States may, for several reasons, be interested in settling their disputes by arbitration. In such instances, Members of the Court have sometimes been called upon by States to sit on the arbitral tribunals in question dealing in some cases with inter-State disputes while in others with investor-State disputes – a testament, of course, to the high esteem in which the Court’s Judges are held by the international community. Over the years, the Court has taken the view that, in certain circumstances, its Members may participate in arbitration proceedings. However, in light of its ever-increasing workload, the Court decided a few months ago to review this practice and to set out clearly defined rules regulating such activities. As a result, Members of the Court have come to the decision, last month, that they will not normally accept to participate in international arbitration. In particular, they will not participate in investor-State arbitration or in commercial arbitration. [pp. 11-12, my emphasis]

President Yusuf elaborated that while sitting judges would no longer be allowed to arbitrate in mixed proceedings, they would be permitted to do so in ‘exceptional’ circumstances in inter-State disputes, provided that their judicial activities are given ‘absolute precedence’:

… in the event that they are called upon, exceptionally, by one or more States that would prefer to resort to arbitration, instead of judicial settlement, the Court has decided that, in order to render service to those States, it will, if the circumstances so warrant, authorize its Members to participate in inter-State arbitration cases. Even in such exceptional cases, a Member of the Court will only participate, if authorized, in one arbitration procedure at a time. Prior authorization must have been granted, for that purpose, in accordance with the mechanism put in place by the Court. Members of the Court, will, however, decline to be appointed as arbitrators by a State that is a party in a case pending before the Court, even if there is no substantial interference between that case and the case submitted to arbitration. [pp. 11-12, my emphasis]

It does not appear that the Court has elected to make formal amendments to its Rules or to include a Practice Direction reflecting the new appointment policy, but rather for individual judges and the President to manage appointment requests on an individual basis. The difference in approaches taken between inter-State and mixed arbitration presumably reflects the significant jurisdictional and substantive overlaps between the Court’s activities and many inter-State arbitrations — especially under Annex VII UNCLOS — and the comparatively smaller pool of eligible arbitrators to fill these roles.

Read the rest of this entry…

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Looking for Middle Ground on the Immunity of Al-Bashir? Take the Third ‘Security Council Route’

Published on October 23, 2018        Author: 
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On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.

Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. Read the rest of this entry…

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Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic

Published on October 8, 2018        Author: 
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On Friday 30 September 2018, Palestine introduced an Application before the ICJ against the United States of America for violation of the Vienna Convention on Diplomatic Relations (VCDR), on account of the transfer of the US embassy from Tel Aviv to Jerusalem. This is yet another judicial episode of David vs Goliath, like the Military and Paramilitary Activities case (Nicaragua v. US) or the South China Seaarbitration (Philippines v. China) were. But this time the David seems even more fragile, since the Goliath disputes the statehood of Palestine and consequently the many rights attached to it – among them, recognition and respect of sovereign equality in the first place.

The seisin of the ICJ has taken international lawyers aback: the reactions went from enthusiastic excitement to sheer incredulity or scepticism. This is not surprising: the case, whether it is decided on the merits or not, has the potential of becoming one of the great cases of international law, those which will be studied for decades by international law students, which will give guidance on highly debated issues, like statehood and erga omnes obligations. It is not every day that the Court is offered such an occasion.

Now, of course, it is certain that the US will challenge the Court’s jurisdiction. The only question is whether they will formally introduce preliminary objections or opt for non-appearance (like China or Russia have lately done). Non-appearance having rarely served the cause of the recalcitrant State, the US would be well advised not to follow that path; all the more if their case on jurisdiction is as strong as Marko Milanovic considers it to be in his post of 30 Sept. 2018. Non-appearance is generally an epidermal reaction by a super-power to legal challenges against its policy. The US’ infuriated announcement of withdrawal from the Optional Protocol to the VCDR, made on 3 Oct 2018, denotes this attitude. But it has no effect on Palestinian proceedings, which were introduced before the denunciation could become effective. 

One may wonder instead why the United States have not made this move earlier. After all, Palestine did warn them, through a verbal note of 4 July 2018, of the dispute on the VCDR. And on the same day, Palestine deposited with the Secretary General a declaration recognizing the jurisdiction of the Court under the Optional Protocol (both texts are available as annexes to Palestine’s Application). Maybe no one in Washington considered that Palestine’s notifications should be taken seriously. Be that as it may, the Application was made on time and the consensual basis of jurisdiction will be difficult to challenge. Read the rest of this entry…

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