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

Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Published on October 12, 2017        Author: 

In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind. Read the rest of this entry…

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New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

Published on September 7, 2017        Author: 

In this latest episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Niels Petersen of the University of Münster, whose article, “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”, appears in Volume 28, Issue 2 of the journal.

In the article, Professor Petersen explores International Court of Justice decisions confirming the existence of customary international law.  The abstract of the article states that:

It is often observed in the literature on customary international law that the identification practice of the International Court of Justice (ICJ) for customary norms deviates from the traditional definition of customary law in Article 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

The EJIL:Live! discussion focuses on the principal empirical findings of the article, and Petersen’s novel conceptualization of those arguments in terms of “judicial politics”, explicable by the institutional constraints that the Court faces. This conversation offers a reflection on how this assessment of the jurisprudence could alter scholars’ normative conceptions of the Court’s decisions, particularly in regards to customary international law.

 

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Reopening Proceedings for Reparations and Abuse of Process at the International Court of Justice

Published on August 16, 2017        Author: 

On 28 July 2017, Nicaragua made the rather surprising announcement that it would revive its claim for US$17 billion in compensation against the United States. To recall, in its 1986 Merits Judgment in Nicaragua v. United States, the International Court of Justice declared that the United States was “under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua” arising from “breaches of obligations under customary international law” [Dispositif, para. 292(13)] and for “breaches of the Treaty of Friendship, Commerce and Navigation between the parties…on 21 January 1956” [Dispositif, para. 292 (14)]. The Court further decided that “the form and amount of reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case”. [Dispositif, para. 292(15)]. After the Court issued an Order fixing time limits for the filing of pleadings on the matter and form of reparation, Nicaragua thereafter informed the Court in 1991 that it did not wish to continue the proceedings. One would have thought that Nicaragua’s discontinuance of the proceedings somehow ensured the finality of the Court’s Judgment on the Merits and left the matter of reparations to political negotiations between the parties. However, as Nicaragua’s recently stated position appears to suggest, there is no time limit for reviving a judicial determination of the form and amount of reparations claims, even if it does not appear that Nicaragua took any steps to pursue its compensation claim against the United States for over thirty years.  The Court’s recent practice likewise appears to lend support to the view that reparations claims can feasibly reopen ICJ proceedings at any point in time, if the Court does not itself fix a time limit to determine when parties’ negotiations on reparations have failed. In its Order of 1 July 2015, the Court in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court observed that since the parties therein had been unable to reach a political settlement since its Judgment of 19 December 2005, it would reopen proceedings as requested by the Democratic Republic of Congo.

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Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case.

Published on July 10, 2017        Author:  and

In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.

Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case. Read the rest of this entry…

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Can the International Court of Justice Decide on the Chagos Islands Advisory Proceedings without the UK’s Consent?

Published on June 27, 2017        Author:  and

As Marko has noted in this post, last week Thursday, the UN General Assembly adopted a resolution requesting the International Court of Justice provide an advisory opinion on the legality of the separation by the United Kingdom of the Chagos Archipelago from the colony of Mauritius prior to the grant of independence to Mauritius by the UK in 1968. Under Article 96 of the UN Charter, the General Assembly can request from the ICJ an advisory opinion on “any legal question.” However, in the process leading to the adoption of the General Assembly resolution, the UK argued that the question put to the Court is essentially about a bilateral dispute between States, and that it is inappropriate for the ICJ advisory opinion procedure to be used to obtain adjudication of a bilateral dispute between states that have not consented to ICJ jurisdiction over that dispute (see summary of debate here and UK statement here). As Marko noted in his post, the Assembly resolution is drafted so as to try to demonstrate that the matter is not (or not just) a bilateral dispute over sovereignty to the Islands but rather a question of self-determination within the remit of the General Assembly. Undoubtedly, the question of the Court’s competence to render the opinion, and of the appropriateness of doing so will be raised again before the Court. This post focuses on the role of state consent in the Court’s advisory jurisdiction, and explores the previous jurisprudence of the Court on whether it can render an advisory opinion which requires it to pronounce on the obligations of states and in particular to pronounce of disputes between states. A key preliminary question the Court will be faced with in the Chagos Islands advisory opinion is whether it (the ICJ) should, for the first time, exercise its discretion not to give an advisory opinion on the ground that the request offends against the principle requiring consent for international adjudication of inter-state disputes. If it does that, the Court would be following a decision of the Permanent Court of International Justice refusing to give an opinion on such grounds.

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ICJ Advisory Opinion Request on the Chagos Islands

Published on June 24, 2017        Author: 

Yesterday the UN General Assembly voted, by 94 to 15 with 65 states abstaining, to issue a request for an advisory opinion from the International Court of Justice on the Chagos Islands. Readers will be familiar with the many legal disputes that have arisen from this leftover UK colonial possession in the Indian Ocean, ranging from the human tragedy of the Chagossians expelled en masse from the islands to make room for what is now a US military base of enormous size and importance, to the role that the Diego Garcia base played in the war on terror, to the applicability of human rights law to these issues, the designation of real or pretextual maritime protection areas, and the actual sovereignty dispute with Mauritius. Here’s a useful news item from the Guardian, and here is GA resolution itself, A/RES/71/292.  This is the operative part, i.e. the request that the Court will have to address:

(a)     “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;

(b)     “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.

The precise drafting of these questions can be enormously consequential, as shown most recently and most clearly with the Kosovo advisory opinion – I would refer interested readers in that regard to the volume edited by Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion (OUP, 2015), particularly chapters 3, 6 and 7 which deal with various aspects of the ‘question question.’ At first glance, the drafting of the Chagos request is not only interesting, but also quite intelligent, especially regarding the (a) part.

Why? Well, one almost ritualistic aspect of these advisory opinions are the objections made to the jurisdiction of the Court and the propriety of its exercise by states who opposed the issuance of the AO request in the first place. These objections almost never work, but the good fight is nonetheless always fought. And there are cases, like the Kosovo one, in which a particular objection (there regarding the relationship between the UNSC and the UNGA) could find significantly more purchase than could otherwise be expected. In the Chagos case in particular, one could expect the UK to make the objection that the AO request is trying to circumvent the consent requirement for contentious ICJ jurisdiction, and is in effect litigating a bilateral dispute (see e.g. the Wall AO, para. 43-50). And in fact there clearly is a set of bilateral disputes on Chagos between Mauritius and the UK.

Note, however, the clever drafting of part (a) of the request: it doesn’t directly speak of whether Mauritius has sovereignty over the Islands, but asks whether the process of decolonization of Mauritius was lawfully completed because of the separation of the Chagos Islands from its territory. It also makes links to numerous GA resolutions, in order to reinforce the view that this is a multilateral issue, raising broader questions of principle which the GA has been dealing with for decades.

When it comes to part (b) of the request, what’s particularly notable is that it doesn’t simply ask what the consequences would be if the Court found that the UK acted unlawfully in part (a). Rather, the consequences are those arising from the UK’s continued administration of the Chagos Islands. This would allow the Court to deal with various questions that not directly related to sovereignty or any faults with the decolonization process, like the plight of the Chagossians. On the other hand, the drafting of part (b) is also such that it could allow the Court to ‘properly interpret’ it in such a way as to avoid some of the more controversial issues, as it in fact did in the Kosovo AO. We shall, of course, have to wait and see what happens – but watch this space.

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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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The Jadhav Case and the Legal Effect of Non-Registration of Treaties

Published on June 19, 2017        Author: 

Those following the legal tangle of the Jadhav Case closely would have noticed India’s (attempted) coup de grâce in its oral submissions regarding the bilateral Agreement on Consular Access of 21 May 2008 between India and Pakistan (“2008 Agreement”, Annex 10 in India’s Application Instituting Proceedings) – that it is unregistered and thus, incapable of being invoked. Pakistan’s oral submissions indicate that this Agreement will form a large part of its case on merits, which in fact, is far stronger than the Indian or Pakistani media give it credit for. Pakistan claims that, irrespective of guilt, the fact of arrest on “political or security grounds” exempts Jadhav from the right of consular access, as per paragraph (vi) of the Agreement, which reads as follows: “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on merits.” Pakistan interprets this examination “on merits”, as regarding the grant of consular access itself, making it a matter of discretion rather than right.

India met this contention head on in the oral stage, with a two-pronged argument. First, it argued that the 2008 Agreement does not purport to restrict or reduce consular access rights provided by the Vienna Convention on Consular Relations, 1963 (“VCCR”). According to India, the 2008 Agreement is for the purpose of “confirming or supplementing or extending or amplifying” (Art. 73 VCCR) the VCCR rights, to the extent that the Agreement “further[s] the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country” (preamble of the 2008 Agreement). To that extent, the first part of the Indian argument is one of interpretation of paragraph (vi) of the 2008 Agreement. The argument is that the Agreement must not be interpreted as exempting those arrested on political or security grounds from consular access since such an interpretation would be contrary to its preamble, to the VCCR, and to the law of treaties, since Art. 41 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”) permits subsequent bilateral agreements only when they are harmonious with pre-existing multilateral treaties. India has not yet offered a counter-interpretation of paragraph (vi). However, a fair guess is that it will argue that the envisaged “examin[ation]…on merits” is for determining the grant of additional rights conferred by the Agreement (such as immediate release and repatriation) and not for the grant of basic VCCR rights themselves. Read the rest of this entry…

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Some Thoughts on the Jadhav Case: Jurisdiction, Merits, and the Effect of a Presidential Communication

Published on May 12, 2017        Author: 

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach? Read the rest of this entry…

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 “Vulnerability” versus “Plausibility”: Righting or Wronging the Regime of Provisional Measures? Reflections on ICJ, Ukraine v. Russian Federation, Order of 19 April 2017

Published on May 5, 2017        Author: 

The ICJ order of 19 April 2017 in the case Application of the international convention for the suppression of the financing of terrorism and the international convention on the elimination of all forms of racial discrimination (Ukraine v. Russian Federation) seeks to safeguard the interests of ethnic minorities in Crimea, and to protect the victims of armed conflict in the eastern regions of Ukraine.

As Iryna Marchuk reported on this blog, the ICJ indicated provisional measures only on the basis of the CERD but not on the basis of ICSFT. The Court notably obliged the Russian Federation to refrain from constraining the representative body of the Crimean Tartars and to ensure the availability of education in Ukrainian language in Crimea (para. 102). The Court also “reminds” both parties of the Minsk Agreement on the Donetsk and Luhansk regions, and “expects” them to work towards its full implementation (para. 104).

Has the Court hereby, once again (and maybe contre gré), acted as a protector of human rights and minorities more than as the quintessential inter-state dispute settlement body? And does this tell us anything about the relative importance of individual rights over inter-state obligations in the web of international law? The two buzz words “plausibility of (state) rights” versus “human vulnerability”, juxtaposed by Judge Cançado Trindade in his separate opinion (esp. in paras 36 et seq) even insinuates a possible conflict between two paradigms. This blog explores the dualism of the states’ international legal status and individual international law-based rights, and the opportunities and risks of the “humanisation” of international law, manifest in these proceedings. Read the rest of this entry…

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