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Home Archive for category "Jurisdiction"

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

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

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

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Callamard Report on the Murder of Jamal Khashoggi: Part II

Published on June 26, 2019        Author: 
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In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).

In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.

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

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

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

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

Preliminary Remarks

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

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 
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Editor’s note: This is the second 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 first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. 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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‘Open for Business’: The Special Criminal Court Launches Investigations in the Central African Republic

Published on February 8, 2019        Author: 
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On 22 October 2018, the Special Criminal Court (SCC) held its inaugural session in Bangui, the capital of the Central African Republic (CAR). Several weeks later, the Special Prosecutor, Col. Toussaint Muntazini, announced his long-awaited prosecutorial strategy. Coming three years after Parliament initially requested a specialist ‘war crimes’ tribunal for CAR, these two acts mark a watershed in the country’s fight against impunity. After providing some background on the SCC, this post examines the prosecutorial strategy and the prospects of accountability in CAR.

The Legal Framework

Established by domestic legislation in June 2015, the SCC is a hybrid tribunal fully integrated into the Central African justice system. It is staffed by national and international prosecutors and judges, and relies on logistical and technical support from the UN peacekeeping mission in CAR. Funded by voluntary contributions, the SCC is functionally independent from both the United Nations and CAR government. Its five-year mandate, which officially began on 22 October 2018, is renewable.

Prosecutorial Strategy

Why did the SCC publicize its prosecutorial strategy? Other tribunals, for instance the Special Court for Sierra Leone and the International Criminal Tribunals for Rwanda and the former Yugoslavia, never made their strategies public (to the extent such strategies existed). The SCC’s decision to ‘go public’ is more in line with the International Criminal Court (ICC)’s practice of adopting formal policies on a variety of matters. Read the rest of this entry…

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The China-Japan and Venezuela-Guyana Maritime Disputes: how the law on undelimited maritime areas addresses unilateral hydrocarbon activities

Published on January 25, 2019        Author: 
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In December 2018, two incidents brought to the fore the importance of the rules addressing activities in undelimited maritime areas.  The first incident occurred between China and Japan in the East China Sea, and the second took place between Venezuela and Guyana in the Atlantic Ocean. Whereas the establishment of maritime boundaries is the optimum choice when it comes to the creation of a stable and secure environment for the conduct of maritime activities, the UN Law of the Sea Convention 1982 (‘LOSC’ or ‘the Convention’) provides for the regulation of operations even in the absence of maritime delimitation. With a view to avoiding tension, Articles 74(3) and 83(3) LOSC impose two obligations upon states having overlapping entitlements/claims in a given undelimited maritime area. This post scrutinises the behaviour of the parties involved in the aforementioned disputes through the lens of the LOSC.

The factual background

On the 3rd of December 2018, Japan protested China’s deployment of a jack-up rig and the drilling of boreholes near the provisional median line between the two states in the East China Sea. In response, the Chinese Ministry of Foreign Affairs stated that China was carrying out hydrocarbon activities in waters falling within its jurisdiction and that it does not recognise the provisional median line with Japan.

It is worth mentioning that China has been engaged in hydrocarbon activities in the area since 2003 (a deal on the establishment of a joint development zone reached in 2008 has not been implemented). Furthermore, it is recalled that in 2014 China performed unilateral oil and gas ventures in an undelimited maritime area within 200M of the coasts of Vietnam, triggering the latter’s vehement reaction. China had attempted to justify its activities back then by invoking its claims according to the ‘9-dash line’, a claim which was put in doubt by the Award of the Arbitral Tribunal in the South China Sea (Philippines v China) case (2016). Read the rest of this entry…

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Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR

Published on November 27, 2018        Author: 
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On October 31st, the Human Rights Committee (HRC) adopted General Comment no 36 on the right to life (GC36, available here) to the International Covenant on Civil and Political Rights (ICCPR/the Covenant). The Comment includes a number of interesting elements including, the introduction of the right to life as the ‘supreme’ right, and the relationship between the right to life and the environment. This post examines the endorsement in GC36 of the notion of ‘impact’ as constitutive of jurisdiction for the purpose of the extraterritorial application of the Covenant.

Impact as Exercise of Jurisdiction

In para. 63 of GC36, the Human Rights Committee adopts the ‘impact’-approach to the interpretation of Art. 6 in conjunction with Art. 2 (1) of the Covenant:

In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.  This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. […]

Readers of this blog will be familiar with the debates on the extraterritorial application of human rights treaties. To quickly recap, the application of human rights treaties 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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Lost in Space? Gaps in the International Space Object Registration Regime

Published on November 19, 2018        Author: 
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Despite having been operational for over 15 years, the satellites NSS-6 and NSS-7 are missing from the United Nations Register of Objects Launched into Outer Space (‘International Register’). Just as we do not accept unregistered cars on our roads, we should not accept unregistered space objects in orbit. Registration ensures that the state responsible for a specific space object can be readily identified, and, if necessary, presented with a claim under the Convention on International Liability for Damage Caused by Space Objects.

For this reason, under the international space object registration regime, all space objects must be registered by a state. So which state is shirking their duty to submit NSS-6 and NSS-7 to the International Register?

The two satellites were built by Lockheed Martin Commercial Space Systems (‘Lockheed Martin’), a United States-based corporation, for New Skies International NV (‘New Skies’), a Dutch corporation. Launch services were provided by Arianespace SA (‘Arianespace’), a French corporation. Both launches took place from French territory. Once in orbit, ownership of the satellites was transferred from Lockheed Martin to New Skies. So at least three states are involved – and the question is which of these states should register NSS-6 and NSS-7 (spoiler alert: I think it’s the Netherlands). This episode is used as a case study to illustrate the ambiguities and gaps that exist in the international space object registration regime. I conclude the post by making a proposal which seeks to find a way to close these gaps. Read the rest of this entry…

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