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Why the Falklands Dispute Will (Probably) Never Go to Court

Published on February 25, 2010        Author: 

Our readers are surely aware of the reemergence of the Falklands dispute on the international stage, provoked by the UK’s decision to allow oil exploration in the waters of the Islands, and the possibility that the oil deposits may be quite significant. Over at Opinio Juris, Julian Ku suggests that the UK and Argentina might well take this dispute to court, either the ICJ or the ITLOS.

In my view, this will simply not happen. Ever. I might well eventually be proven wrong, of course, but it seems to me that the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution. Here’s why:

First, the current oil exploration dispute cannot judicially be resolved on its own, since it legally entirely depends on who was title over the islands – the UK or Argentina. If it was Argentina who was the Islands’ proper owner, it would be perfectly within its rights to oppose the UK’s implementation of oil exploration by any non-forcible means. If, on the other hand, it was the UK who had title, then it is clear under the UNCLOS and other applicable law that it has every right to drill away, come what may.

Second, as for title, the issue is extremely complicated. To brutally simplify it, Argentina claims title either through succession from Spain, or by having occupied the Islands on its own shortly after gaining independence. The UK relies on prior discovery, effective occupation since 1833, and prescription. It also relies on the Islanders’ right to self-determination, which they’ve freely exercised by choosing to remain a part of the UK. This is, for example, how the UK’s Ambassador to the UN has just stated the UK’s position:

As British Ministers have made clear, the UK has no doubt about its sovereignty over the Falkland Islands, South Georgia and the Sandwich Islands. This position is underpinned by the principle of self-determination as set out in the UN Charter. We are also clear that the Falkland Islands Government is entitled to develop a hydrocarbons industry within its waters, and we support this legitimate business in Falklands’ territory.

Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands. Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it. For reasons of space and time I will not venture into this further, but there are two recent exhaustive treatments of the subject which are helpful: R. Laver, The Falklands/Malvinas Case (Nijhoff, 2001); R. Dolzer, The territorial status of the Falkland Islands (Malvinas): past and present (Oceana, 1993).

Fourth, following from three above, the UK knows full well not only that there would be a chance, but that there would be a good chance that it might lose a judicial dispute over the Falklands.

Fifth, the UK has invested an enormous amount of political capital in preserving its sovereignty claim over the Falklands, both internally and externally. It has fought a war over them, which still has a place in the national psyche. It has guaranteed to the population (if perhaps not the ‘people’) of the Falklands the right to determine their own fate. For the foreseeable future, it is politically inconceivable that the UK would be willing to renounce this claim, which it would have to be prepared to do if it submits the case to judicial resolution. Not to mention the fact that an oil bonanza would only render such an option less likely.

Sixth, as a matter of fact, the UK’s hold over the Falklands is strong. It’s military position today is far superior to what it was back in the day when the Argentine junta decided on its little adventure. Argentina has no practical way of forcing the issue.

In sum, because of (1)-(6), it is unlikely in the extreme that the UK would be willing to submit this case to a court. It would of course do so if Argentina would be willing to accept arguendo the UK’s title over the Islands, and thus narrow the dispute down to the current oil exploration issues. Yet Argentina has no interest in doing so, because it also knows that it would lose this dispute if title were out of the picture.

So, the only way forward are negotiations. Such negotiations could probably only be successful if title was kept out of the picture, in exchange for a deal on oil rights and a share of profits. The UK and Argentina had such an agreement in 1995, but Argentina repudiated it in 2007. Whether a new deal on those lines is possible today depends on various political considerations that I know nothing about. I am convinced, however, that little else is practically possible.

Anyway, those desperately wanting to see the Falklands dispute (or a simulacrum thereof) argued in court may wish to come to Washington, DC, from 20-27 March, for the international rounds of this year’s Jessup moot court competition

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Will the ICC’s Pre-Trial Chamber give Ocampo the Benefit of the Doubt in Kenya?

Published on February 18, 2010        Author: 

On 26 November 2009, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, requested permission from the ICC’s Pre-Trial Chamber II to conduct formal investigations in Kenya, the first time he has ever sought to use his proprio motu powers to initiate an investigation.  In what will be an historic and significant decision, the Pre-Trial Chamber will have the opportunity to provide clarification on a number of contentious issues of international criminal law, including the principle of complementarity, the gravity threshold, the meaning of “interests of justice” and the definition of “crimes against humanity”.  After providing a brief background on the conflict in Kenya and describing the applicable procedure from the Rome Statute, this piece will consider some of the issues that will likely be occupying the minds of the three judges that comprise the Pre-Trial Chamber.

1.  Background and Applicable Procedure

In a previous post, I discussed the events that led to the Prosecutor of the International Criminal Court becoming involved in the Kenyan situation.  In this post, I will consider that legal issues that arise from this involvement.

Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on crimes that fall within the jurisdiction of the Court.  Article 15(3) provides that “if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected.”  Once such a request has been made, the Pre-Trial Chamber shall, in accordance with Article 15(4) authorise the commencement of the investigation where it is satisfied that there is a “reasonable basis to proceed with an investigation” and that the case “appears to fall within the jurisdiction of the Court”.  Rule 48 of the Rules of Procedure and Evidence provides that in determining whether there is a reasonable basis to proceed with an investigation under Article 15(3), the Prosecutor is required to consider the matters set out in Article 53(1), namely:

(a)    Whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;

(b)   Whether the case would be admissible under Article 17; and

(c)    Whether, taking into account the interests of victims and the gravity of the crime, it would be in the interests of justice to proceed with an investigation.

Read the rest of this entry…

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International Court of Justice to Appoint 6 New Clerks

Published on February 16, 2010        Author: 

The International Court of Justice (ICJ) has announced that it is seeking to appoint 6 new Law Clerks for its judges. The additional clerks will make it possible for each judge to have a full time law clerk. The decision by the General Assembly to allocate extra resources to the Court is welcome as the list of cases before the Court continues to grow (see our earlier posts on recent cases here , here, here and here). Until now, ICJ Judges have had to share clerks and have also had the benefit of year long interns which have been paid for by law schools around the world under the Court’s univerity traineeship programme. My own law school at Oxford recently joined this latter programme and now provides one intern to the Court.

The announcement on the ICJ’s website regarding the new positions says that:

Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

The new positions are at P2 level and will be made for a fixed term of 2 years with the possibility of renewal.

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Should the ICC Appeals Chamber have a made a decision on Bashir’s Immunity?

Published on February 13, 2010        Author: 

Readers will probably know by now that the ICC Appeals Chamber handed down a decision on February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Sudanese President Bashir with respect to the charge of genocide in Darfur. The Pre-Trial Chamber (PTC) issued an arrest warrant with respect to war crimes and crimes against humanity but held that the Prosecutor had failed to satisfy the standard in Art. 58(1) of the Rome Statute that there were “reasonable grounds” to believe that genocide had been committed.  The PTC held that  “if the existence of a . . . genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” As Marko commented  here on EJIL:Talk! at the time, the decision by the Pre-Trial Chamber on this issue was highly problematic as it did not in fact apply a reasonable grounds to believe test but seemed to require proof beyond reasonable doubt. The Appeals Chamber agrees and held that

“In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”.” (para. 33)

However, the Appeals Chamber did not itself reinstate the genocide charge, but, rather, remanded the matter to the PTC to make a new decision applying the correct standard.

This is all well and good.  However, I wonder why the Appeals Chamber did not decide to take up the elephant in the room regarding the arrest warrant for Bashir – the issue of whether as a serving head of State he is entitled to immnity from arrest and whether the Court is entitled to order his arrest in the first place.  This is an issue that we have discussed at length here on EJIL:Talk! (see here, herehere and here). Its a matter that has exercised African States and led to a call by the Assembly of Heads of States of the African Union for African States not to cooperate with the ICC with respect to the arrest of  Bashir case.  The length of time taken by the Appeals Chamber to issue a decision in this matter suggested that it was considering a weighty issue (see the excellent post by Prof. Bill Schabas on his blog regarding the time taken by the Appeals Chamber). In the end it came up with a rather brief decision saying what was obvious to most knowlegable observers (though to be fair not obvious to the majority of the PTC). So why that lenghty delay?

Read the rest of this entry…

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Belgium sues Swizterland in the ICJ in a dispute concerning recognition and enforcement of a civil judgment

Published on December 30, 2009        Author: 

Last week, Belgium initiated proceedings in the ICJ against Swizterland in a dispute raising issues of private international law and of the relationship between public international law and private international law. The dispute concerns:

“the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters . . ., and the application of the rules of general international law that govern the exercise of State authority, in particular in the judicial domain, [and relating to] the decision by Swiss courts not to recognize a decision by Belgian courts and not to stay proceedings later initiated in Switzerland on the subject of the same dispute”. [See Press Release here]

The dispute arises out of the parallel proceedings pursued in Belgium and Switzerland by the main shareholders of the former Belgian airline – Sabena (which is now in bankruptcy). Those shareholders included the Belgian State (as well as companies owned by Belgium) and the Swiss airline formerly known as Swissair. After proceedings were brought in the Belgian courts by the Belgian shareholders against the Swiss shareholders, the latter in turn brought proceedings in the Swiss Courts. Belgium asserts that

“the Swiss courts, including in particular the Federal Supreme Court, have however refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention and ‘the rules of general international law that govern the exercise of State authority, in particular in the judicial domain’.” [See Press Release here]

It is rare for the court to have to deal with a case that raises issues of private international law but this has happened before – in the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (1958). What appears to be particularly interesting about the present case is that it raises issues about the impact of public international law on private international law. This is because Belgium argues that Swiss Courts are under an obligation to stay proceedings brought in that country not only as a result of the Lugano Convention but also because this result is dictated by the rules of general international law relating to jurisdiction. According to Belgium, the failure by Switzerland to stay the proceedings is a breach of “the rule of general international law that all State authority, especially in the judicial domain, must be exercised reasonably.”

Belgium has requested that the case be heard by a Chamber of the Court rather than by the full Court. This case is the third to be initated in the ICJ in 2009. Interestingly, the first was also brought by Belgium (against Senegal) [see EJIL:Talk! commentary on that case here, here and here]. The second case brought by Honduras against Brazil has not been entered on the Court’s general list of cases (see EJIL:Talk! commentary here)

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Grand Chamber Judgment in Sejdic and Finci v. Bosnia

Published on December 22, 2009        Author: 

Update 6 September 2010 – see also this post.

Appropriately enough in light of our recent discussions of international constitutionalism, today the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (our previous coverage here; judgment here, but the HUDOC link might not be permanent). The case is by any definition a landmark for Strasbourg, not to mention Sarajevo.

Read the rest of this entry…

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Denmark Invites Sudanese President Bashir to Climate Change Conference

Published on November 19, 2009        Author: 

As readers will probably know, there will be a United Nations Conference on Climate Change to be held in Copenhagen, Denmark in December (see conference website here). Participation in the conference is open to parties to the United Nations Framework Convention on Climate Change as well as Observer States, organizations within the United Nations System and observer organizations admitted by the Conference of the Parties. A Danish newspaper has recently reported (see here) that Sudanese President Bashir has been invited to attend the conference:

[Danish Prime Minister] Lars Løkke Rasmussen has invited world leaders to [the] climate meeting, including one subject to an ICC arrest warrant.  . . . World leaders from 191 countries received the official invitation from Prime Minister Lars Løkke Rasmussen yesterday to attend the UN Climate Change Conference in Copenhagen (COP15) this December.

. . . one of those invited is Sudanese president Omar al-Bashir, who is currently subject to an arrest warrant issued by the International Criminal Court for crimes against humanity.

Thomas Winkler, head of the Foreign Ministry’s legal department, said that as the climate conference is a UN event, Denmark is obliged to invite all heads of government without exception.

‘But at the same time we would point out that Denmark is also obliged to comply with the Security Council’s resolution regarding Darfur,’ Winkler said to Berlingske.dk.

The security council resolution states that Sudan, like all countries, must cooperate with the International Criminal Court, and Denmark would be obliged to honour the ICC arrest warrant should al-Bashir arrive in the country.

The issue of President Bashir’s immunity has been discussed extensively on this blog (see here, herehere, here, and here). I have argued on the blog and in the Journal of International Criminal Justice that the effect of the Security Council referral of the Darfur situation to the ICC is that Sudan is to be treated as if it were a party to the ICC Statute and is thus bound by Article 27 of the ICC Statute which removes immunity.

However, I am not sure that the Danish Legal Adviser is right that Denmark would be bound to honour the ICC Arrest Warrant. The reason for this is Article IV, Section II of the Convention on the Privileges and Immunities of the United Nations (1946), which provides:

“SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities:

(a) Immunity from personal arrest or detention  . . .”

It seems to me that there is good argument to be made that this obligation prevails over any other inconsistent obligation as a result of Article 103 of the UN Charter. Although the UN Immunities Convention is a treaty, it is a treaty that elaborates on Article 105 of the UN Charter. That article provides that:

“(2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

(3) The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.”

In short, the obligation to accord immunity is a Charter obligation. As such it would prevail over any inconsistent obligations. Even if the Security Council were to explicitly provide that Bashir should be arrested at the conference, that would be contrary to the Charter.

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ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity

Published on November 17, 2009        Author: 

Lionel Nichols is a research student in the Faculty of Law, University of Oxford. He is an executive member of the Oxford Transitional Justice Research Group and has prevously interned at the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone.

Earlier this month, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo announced that he will seek permission in December from the ICC’s Pre-Trial Chamber to initiate an investigation into crimes alleged to have been committed during the 2007 post-election violence in Kenya. The announcement signalled that Ocampo’s patience in relation to the situation in Kenya had finally expired.  Ocampo has waited over a year for Kenya’s Grand Coalition Government to establish a Special Tribunal for Kenya to try those suspected of being responsible for the 2007 post-electoral violence. Now, for the first time, he is using his powers under Article 15 of the ICC Statute to initiate proceedings in the ICC propio motu (on his own motion).

The investigations into the Kenya situation will build upon the work of the Commission of Inquiry on Post Election Violence (Waki Commission), which issued its report on 15 October 2008 (see here).  The Waki Commission found that, in the violence that followed Mwai Kibaki’s claim to have won the December 2007 presidential elections, at least 1,133 people were killed and more than 300,000 were left homeless.  Assuming paramount importance amongst the list of recommendations made by the Waki Commission was the establishment of a Special Tribunal for Kenya to try those persons suspected of being responsible for the violence.  To coerce the Grand Coalition Government into adopting the recommendation, the names of at least 10 persons believed to have been responsible for orchestrating the violence were placed into a sealed envelope and threatened to be handed over to Ocampo should the Government fail to establish a Special Tribunal by January 2009. Read the rest of this entry…

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Dispute Concerning Honduran Government Crisis Heads to the International Court of Justice (UPDATED)

Published on October 30, 2009        Author: 

UPDATE: Since I wrote this piece it has been announced that the rival Honduran leaders have reached agreement to resolve the crisis relating to the Presidency (see BBC report here). It is not clear what impact this will have on the ICJ case discussed below.

The  new “government” of Honduras has instituted proceedings in the International Court of Justice against Brazil which has given refuge in its embassy in Honduras to “former” Honduran President José Manuel Zelaya (see ICJ Press Release). According to the Application submitted to the Court yesterday by the Honduran Ambassador in the Netherlands:

the “dispute between the Republic of Honduras and the Federative Republic of Brazil relates to legal questions concerning diplomatic relations and associated with the principle of non-intervention in matters which are essentially within the domestic jurisdiction of any State, a principle incorporated in the Charter of the United Nations”.
In particular, the document indicates that “[Mr. José Manuel Zelaya Rosales and] an indeterminate number of Honduran citizens”, who have been taking refuge in the Brazilian Embassy in Honduras since 21 September 2009, “are using [its] premises . . . as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras, at a time when the Honduran Government is making preparations for the presidential elections which are due to take place on 29 November 2009”. It is stated that “[t]he Brazilian diplomatic staff stationed in Tegucigalpa are allowing Mr. Zelaya and his group to use the facilities, services, infrastructure and other resources in order to evade justice in Honduras”.

According to the document submitted by Honduras:

the primary purpose of this Application is to secure a declaration that Brazil has breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations

and Honduras

requests the Court to adjudge and declare that Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so.

There is no indication in the press release about the grounds on which Honduras claims that the Court has jurisdiction to consider the case. While Honduras has made a declaration under Art. 36(2) of the ICJ Statute recognising the compulsory jurisdiction of the ICJ, Brazil has not. However, both States are parties to the Pact of Bogotá  1948(The American Treaty on Pacific Settlement, see here). Under,  Art. 31 of that treaty, parties accept the compulsory jurisdiction of the ICJ.

The majority of the international community and international institutions such as the UN and the OAS appear to have taken the view that removal of President Zelaya was not only unconstitutional under domestic law but also illegal as a matter of international law. In previous EJIL:Talk! posts (here and here) Brad Roth has discusssed the international reaction to the Honduran crisis and argued that the response has the potential to effect (an ill advised) shift in foundational norms governing the relationship between international and domestic legal authority. Although the ICJ proceedings instituted by the new authorities in Honduras are not framed in these terms, the case may mean that the ICJ gets to pronounce on whether the new “government” is actually the government. In fact, it may well be that it is the ICJ that has the definitive say as a matter of international law on who is the legitimate government in Honduras! Read the rest of this entry…

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Is There Still a Need for Guidelines for the Exercise of ICC Prosecutorial Discretion?

Published on October 28, 2009        Author: 

In April of this year, the ICC Prosecutor issued a set of Regulations of the Office of the Prosecutor. These regulations are intended to govern the way in which the office of the ICC Prosecutor  is administered and the way in which it conducts investigations and operations. Back in 2003, the Office of the Prosecutor issued a policy paper in which it stated that:

“The Office of the Prosecutor considers that Regulations are essential to ensure its independence and accountability. For this reason, it will adopt ad interim Regulations to guide the decisions and practice of the Office, taking into consideration the comments received in the public hearings and throughout the consultation process. The Office considers that in the elaboration of the final Regulations, it will be indispensable to also take into account the views of the staff members that will be recruited and the experience gained by the Office in its first months of operations. The Office envisages adopting these Regulations during the first semester of 2004.”

I am not sure if interim regulations were issued in 2003 or if the 2009 regulations are the first issuance of the “final regulations.” Given what was said in the policy paper, it would appear that the Regulations are intended to provide standards for prosecutorial decision making and in particular to guide the exercise of prosecutorial discretion. However, these regulations do not in fact provide much guidance on how the prosecutor will make decisions in those areas where the prosecutorial discretion is most important: decisions relating to what situations to investigate and who to prosecute.

Read the rest of this entry…

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