Milanovic: From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties

Marko Milanovic (Belgrade Centre for Human Rights) has posted From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties (Human Rights Law Review, forthcoming). Here's the abstract:

The extraterritorial application of human rights treaties is surely one of the most interesting issues that international law is facing today. Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently, before courts both international and domestic. Victims of aerial bombardment, inhabitants of territories under military occupation - including deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government - all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. Obviously, all of these matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. Further complexity is added by the often concurrent questions such as state responsibility for acts of international organizations or the relationship between human rights law and humanitarian law.

This article will not be attempting to establish whether a particular human rights treaty should apply in a specific factual situation or not, or whether this case or that was wrongly decided. Though the latter kind of analysis in particular cannot be avoided - or, indeed, is to be relished - the purpose of this article is more systemic - to unravel the notion of 'jurisdiction' found in the clauses of various human rights treaties, particularly those protecting civil and political rights, which define their scope of applicability, and on the interpretation of which the extraterritorial application of these treaties ultimately hinges. As will be seen, a number of concepts hide themselves behind this single word, 'jurisdiction', and its different meanings contribute to the confusion found both in the jurisprudence and in academic commentary. The article will first provide a brief overview of jurisdiction clauses in the various treaties, and will then proceed to distinguish this notion of 'jurisdiction' from that eponymous notion in general international law, and from the concept of state responsibility.

ICTR: Denial of Request to Transfer Munyakazi’s Case to Rwanda

On Wednesday, the International Criminal Tribunal for Rwanda denied a request to transfer Yussuf Munyakazi's case to Rwanda. This has serious implications for the Tribunal's completion strategy. The Trial Chamber's decision is here; Hirondelle News's report is here. Here's the ICTR press release:

On 28 May 2008, the Trial Chamber issued its decision, denying the application for referral of Yussuf Munyakazi case to the Republic of Rwanda on mainly two grounds. Born in 1935 in Kibuye, Munyakazi was a businessman and farmer in Cyangugu Province.

First, the Trial Chamber acknowledged that the Republic of Rwanda has abolished the death penalty which will not apply to the referred cases. However, the Trial Chamber was concerned about the sentence of life imprisonment in isolation which replaces the death penalty in the Rwandan law. The Trial Chamber was of the view that certain safeguards listed in the Decision should be put in place to make such a penalty conform with international human rights standards.

Secondly, the Trial Chamber expressed serious concern about the fair trial right of the Accused, with specific reference to the independence of the tribunal that would try the case if referred, and the ability of the Accused to call witnesses in his defence and the witness protection program in place. Specifically, the Tribunal was concerned that there is a lack of sufficient guarantees against outside pressure on the judiciary and that, based on the past actions of the Government, the independence of the judiciary would not be respected.

On 7 September 2007, the Prosecutor filed a motion for referral of the case to the Republic of Rwanda. On 2 October 2007, Trial Chamber III was designated to consider the motion. The Trial Chamber granted amicus curiae status to the Republic of Rwanda, the Kigali Bar Association, Human Rights Watch and the International Criminal Defence Attorneys Association, while denying such request from IBUKA & AVEGA, and from ADAD (Organisation of ICTR Defence Counsel). On 24 April 2008, the Trial Chamber heard the parties and the amici curiae in open session.

The Trial Chamber composed of Judges Inés Mónica Weinberg de Roca, presiding, Lee Muthoga and Robert Fremr was particularly concerned in view of the fact that the High Court hearing the referred case would be composed of a single Judge who would be less likely to be able to resist any pressures than a panel of three or more judges. The Trial Chamber also highlighted that the factual findings of that single Judge could only be reviewed by the Supreme Court in the case of a miscarriage of justice. The Trial Chamber stated that its concerns regarding the independence of the tribunal would be substantially reduced if the High Court was composed of three or more Judges. With regard to witnesses, the Trial Chamber was concerned by the fact that the Accused may not be able to call witnesses due to their fears for their safety and in addition, the witness protection program is understaffed, run by the Prosecutor and the Police whom a Defence witness may not consider as neutral bodies.

In summary the Trial Chamber found that Rwandan penalty structure does not meet internationally recognised standards and was not satisfied that the right of the Accused to a fair trial would be respected if the case was referred. However, the Chamber acknowledged the positive steps already taken by Rwanda to facilitate referral, and indicated that if Rwanda continued along this path, the Tribunal will hopefully be able to refer future cases to Rwandan courts.

Both parties have the right to appeal the Decision. They have 15 days to file any such notice.

Yussuf Munyakazi was jointly indicted in 1997, with Bagambiki and Imanishimwe. In 2000, the Trial Chamber granted the severance of his case, and the indictment was subsequently amended in 2002, charging the Accused for genocide and alternatively complicity in genocide, and extermination as a crime against humanity.

He was arrested on 5 May 2004 in the Democratic Republic of Congo (DRC) and transferred to the UN detention facility in Arusha on 7 May 2004. During his initial appearance on 12 May 2004, Yussuf Munyakazi pleaded not guilty to charges brought against him by the Prosecutor that he participated in the1994 Rwanda genocide.

New Issue: Review of International Studies

The latest issue of the Review of International Studies (Vol. 34, no. 3, July 2008) is out. Contents include:

• Terry Nardin, Theorising the international rule of law
• Casper Sylvest, ‘Our passion for legality’: international law and imperialism in late nineteenth-century Britain
• Linda S. Bishai, Leaving Nuremberg: America’s love/hate relationship with international law
• Louise Arbour, The responsibility to protect as a duty of care in international law and practice
• Darren Hawkins & Carolyn Shaw, Legalising norms of democracy in the Americas
• Gunther Hellmann & Benjamin Herborth, Fishing in the mild West: democratic peace and militarised interstate disputes in the transatlantic community
• Peter Newell, The political economy of global environmental governance
• Anne-Marie Gardner, Beyond standards before status: democratic governance and non-state actors
• Yee-Kuang Heng & Ken McDonagh, The other War on Terror revealed: global governmentality and the Financial Action Task Force’s campaign against terrorist financing

SCSL: Prosecutor v. Fofana and Kondewa

On Wedesnday, May 28, the Appeals Chamber of the Special Court for Sierra Leone revised the convictions and sentences of Moinina Fofana and Allieu Kondewa, who were leaders of the Civil Defence Forces during Sierra Leone’s civil war. (Appeals Chamber judgment here; indictment here; summary of the charges here; Trial Chamber judgment here.) The Court's press release summarizes the ruling:

The Special Court Appeals Chamber, in a majority Judgment, today overturned convictions imposed by the Trial Chamber against Moinina Fofana and Allieu Kondewa for collective punishments and against Kondewa for recruiting of child soldiers. The Appeals Chamber, by a majority, also entered two new convictions against both men for murder and inhumane acts as crimes against humanity.

In the Judgment, the majority of the Appeals Chamber upheld Trial Chamber convictions of the two men on counts of murder and cruel treatment as war crimes, but increased their sentences substantially. Fofana, who had been sentenced by the Trial Chamber to concurrent sentences totalling six years, has now been sentenced to fifteen years. Kondewa’s total sentence was increased from eight to twenty years.

The Judges considered nine grounds of appeal by the Prosecution and six grounds by Allieu Kondewa. Moinina Fofana did not appeal his conviction or sentence, but he was a respondent to the Prosecution appeals.

The Appeals Chamber majority reversed acquittals by the Trial Chamber on counts 1 and 3 of the indictment, for murder and inhumane acts as crimes against humanity, granting the Prosecution’s appeal that the CDF had directed attacks against a civilian population, and not just against military targets.

The Appeals Chamber, again by majority, sustained war crimes convictions on counts 2 and 4 for murder and cruel treatment, but increased the sentences. The Judges, however, unanimously overturned Kondewa’s conviction for murder in Talia.

On count 5, pillage as a war crime, the majority of the Judges sustained the Trial Chamber’s conviction of Kondewa based on acts committed in Bonthe District, but said the Trial Chamber erred when it convicted him of acts committed in Moyamba District.

The five Judges unanimously upheld the Trial Chamber’s acquittal of the two men on Count 6, acts of terrorism as a war crime.

The majority of the Appeals Chamber reversed the two men’s convictions on Count 7, collective punishments as a war crime, concluding that the Trial Chamber had erred in its definition of the crime.

The majority also reversed Kondewa’s conviction on Count 8, for the enlistment of children under the age of 15 as combatants.

The Appeals Chamber, by a majority, held that the Trial Chamber erred in considering political motives or fighting in a "just cause" as mitigating factors in sentencing.

Dissenting opinions were read out by Justice George Gelaga-King on convictions and sentencing, by Justice Jon Kamanda on sentencing, and by Justice Renate Winter in relation to the enlistment of child soldiers, collective punishments, and politically mitigating circumstances.

ICJ: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Conclusion of Public Hearings)

Today, the International Court of Justice concluding its public hearings on the preliminary objections raised by Serbia in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (press release here).

Here are the final submissions of the parties:

For Serbia

Serbia requests the Court to adjudge and declare:

1. that the Court lacks jurisdiction, or in the alternative

2. (a) that claims based on acts or omissions which took place prior to 27 April 1992 are beyond the jurisdiction of this Court and inadmissible; and

(b) that claims referring to

• submission to trial of certain persons within the jurisdiction of Serbia,
• providing information regarding the whereabouts of missing Croatian citizens, and
• return of cultural property

are beyond the jurisdiction of this Court and inadmissible.

For Croatia

The Republic of Croatia respectfully requests the International Court of Justice to:

1. reject the first, second and third preliminary objection of Serbia, with the exception of that part of the second preliminary objection which relates to the claim concerning the submission to trial of Mr. Slobodan Milošević, and accordingly to

2. adjudge and declare that it has jurisdiction to adjudicate upon the Application filed by the Republic of Croatia on 2 July 1999.

The verbatim record of the oral proceedings can be found here.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 23, no. 5, May 2008) is out.

New Issue: International Review of the Red Cross

The latest issue of the International Review of the Red Cross (Vol. 90, no. 869, March 2008) is out. This is the second of two issues on the "Conflict in Iraq." (The first issue is here.) Contents include:

• Conflict in Iraq II
• Eric Stover, Miranda Sissons, Phuong Pham, & Patrick Vinck, Justice on hold: accountability and social reconstruction in Iraq
• Robert Kolb, Occupation in Iraq since 2003 and the powers of the UN Security Council
• Zouhair Al Hassani, International humanitarian law and its implementation in Iraq
• Muhammad Munir, Suicide attacks and Islamic law
• John P. Pace, Human rights in Iraq's transition: the search for inclusiveness
• Greg Hansen, The ethos-practice gap: perceptions of humanitarianism in Iraq
• Daniel Palmieri, Crossing the desert – the ICRC in Iraq: analysis of a humanitarian operation
• Karl Mattli & Jörg Gasser, A neutral, impartial and independent approach: key to ICRC's acceptance in Iraq
• Andrew Harper, Iraq's refugees: ignored and unwanted

New Issue: International Review of the Red Cross

The latest issue of the International Review of the Red Cross (Vol. 89, no. 868, December 2007) is out. This is the first of two issues on the "Conflict in Iraq." (The second issue is here.) Contents include:

• Conflict in Iraq I
• Interview with His Royal Highness Prince Hassan of Jordan
• Joost Hiltermann, A new sectarian threat in the Middle East?
• Reidar Visser, Ethnicity, federalism and the idea of sectarian citizenship in Iraq: a critique
• Inga Rogg & Hans Rimscha, The Kurds as parties to and victims of conflicts in Iraq
• Pierre-Jean Luizard, Islam as a point of reference for political and social groups in Iraq
• Wael Adhami, The strategic importance of the Internet for armed insurgent groups in modern warfare
• Daoud Kuttab, The media and Iraq: a blood bath for and gross dehumanization of Iraqis
• Ahmad Abdel Majid, The crisis of professional responsibility in Iraqi journalism: avoiding incitement to violence and armed conflict
• Ekmeleddin İhsanoğlu, Assessing the human tragedy in Iraq
• Nasir Ahmed Al Samaraie, Humanitarian implications of the wars in Iraq
• Beth Osborne Daponte, Wartime estimates of Iraqi civilian casualties

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 48, no. 4, Summer 2008) is out. Contents include:

• Christina Duffy Burnett, "They say I am not am American . . . ": The Noncitizen National and the Law of American Empire
• Martin V. Totaro, Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development
• Susan D. Franck, Empiricism and International Law: Insights for Investment Treaty Dispute Resolution

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 57, no. 2, April 2008) is out. Contents include:

• Gbenga Oduntan, The Emergent Legal Regime for Exploration of Hydrocarbons in the Gulf of Guinea: Imperative Considerations for Participating States and Multinationals
• Jessica Almqvist, A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions
• Luis Miguel Hinojosa Martínez, The Legislative Role of Security Council in Its Fight Against Terrorism: Legal, Political and Practical Limits
• Campbell McLachlan, Investment Treaties and General International Law
• Mohamed El Zeidy, From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the Ad Hoc Tribunals
• Justin Borg Barthet, Online Gambling and the Further Displacement of State Regulation: A Note on PMU v. Zeturf
• Irit Mevorach, The "Home Country" of a Multinational Enterprise Group Facing Insolvency

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 47, no. 2, March 2008) is out. Contents include:

• United States Court of Appeals for the District of Columbia Circuit: Belhas v. Ya'Alon, with introductory note by Jason Morgan Foster
• International Centre for the Settlement of Investment Disputes: Ecuador's Notification Under Article 25(4), with introductory note by Xavier Andrade Cadena & Marco Tulio Montañes
• Permanent Court of Arbitration: Guyana and Suriname, with introductory note by Stephen Fietta
• Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, with introductory note by John J. Sampson

A League of Democracies

There's been a lot of talk this election campaign about the creation of a League (or a Concert or an Alliance) of Democracies. The idea, which has its adherents on both sides of the political divide, goes back a while, but it has had a resurgence over the past four years or so. The op-ed pages have recently been alive with League-talk - proponents include Jackson Diehl (here) and Robert Kagan (here); skeptics include Thomas Carothers (here) and Mark Mazower (here). I'm with the skeptics, as well as with Gail Collins, who asks (in her usual pitch-perfectly subtle and sarcastic way, obliquely referring to the Legion of Super-Heroes): "will there be uniforms?"

New Issue: The International Review

The latest issue of The International Review (Vol. 10, no. 2, Spring 2008) is now out. The full issue can be downloaded here. Contents include:

• The Foreign Intelligence Surveillance Act: Hindering the "War on Terror"?
• Regulating sovereign wealth funds
• Amending birthright citizenship: A better way to control illegal immigration?
• Punishing human rights violations: First corporate jury verdict under the Alien Tort Claims Act
• The United States in Iraq: A Five-Year Review of Unresolved Legal Issues (special section)
• Unwarranted surveillance in America? The National Security Agency surveillance program
• Targeted killings in the war on terror: Legitimate or illegal?
• On the road to a new climate agreement?
• The European Union: Adopting a failed constitution as a treaty
• Jury duty back in Japan
• Showdown on harsh CIA interrogation techniques
• Birth of a nation: Legal issues in Kosovo's independence
• United Nations: Better treatment for indigenous peoples?
• United Nations: The end of the death penalty?

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 52, no. 3, June 2008) is out. Contents include:

• Patrick T. Brandt, Michael Colaresi, & John R. Freeman, The Dynamics of Reciprocity, Accountability, and Credibility
• Isabell Winkler, Klaus Jonas, & Udo Rudolph, On the Usefulness of Memory Skills in Social Interactions: Modifying the Iterated Prisoner's Dilemma
• Zaryab Iqbal & Christopher Zorn, The Political Consequences of Assassination
• James Raymond Vreeland, The Effect of Political Regime on Civil War: Unpacking Anocracy
• Douglas M. Gibler, The Costs of Reneging: Reputation and Alliance Formation
• Daniel Barkley, Ballistic Missile Proliferation: An Empirical Investigation

Convention on Cluster Munitions

Yesterday, 111 countries adopted the Convention on Cluster Munitions at a diplomatic conference in Dublin. (New York Times story here; Washington Post story here; BBC story here; The Guardian stories here and here; Times story here.) Article 1 of the Convention provides that "Each State Party undertakes never under any circumstances to: a) Use cluster munitions; b) Develop, produce, otherwise acquire, stockpile, retain anyone, directly or indirectly, cluster munitions; c) Assist, encourage or induce anyone to engage prohibited to a State Party under this Convention." (What appears to be the final or near-final text is available here.) A signing ceremony will take place in Oslo in December. Brazil, China, India, Israel, Pakistan, Russia, and the United States boycotted the conference. The United Kingdom agreed to the conference text at the conclusion of the negotiations once language was drafted that allowed parties to the Convention to "engage in military cooperation and operations with States not parties to this Convention that might engage in activities prohibited to a State party" (article 21(3)).

Wolny: Die völkerrechtliche Kriminalisierung von modernen Akten des internationalen Terrorismus

Kerstin Wolny has published Die völkerrechtliche Kriminalisierung von modernen Akten des internationalen Terrorismus: Unter besonderer Berücksichtigung des Statuts des Internationalen Strafgerichtshofs (Duncker & Humblot 2008). Here's the abstract:

Angesichts der Globalisierung des Terrorismus und der Verletzung völkerrechtlicher Schutzgüter durch ihn wird offensichtlich, dass die strafrechtliche Auseinandersetzung mit terroristischen Gewaltakten nicht allein auf nationaler Ebene stattfinden darf. Innerstaatliche Strafrechtsordnungen können den spezifisch völkerrechtlichen Unrechtsgehalt modernen Terrorverhaltens nicht erfassen, denn sie sind auf klassische Terrorgefahren vorbereitet. Zur Ahndung von internationalen Terrorverbrechen tritt hier, insbesondere mit Blick auf atypische Terrorformen mittels Massenvernichtungswaffen, das Erfordernis einer internationalen Strafgerichtsbarkeit zutage. Diese soll die nationalen Kompetenzen zur Strafverfolgung terroristischer Verbrechen nicht ersetzen, sie muss diese aber ergänzen, um bestehende Strafbarkeitslücken zu schließen.

Kerstin Wolny untersucht die Frage, ob das Völkerstrafrecht ein geeignetes Instrumentarium zur Kriminalisierung von modernen Akten des internationalen Terrorismus bereithält. Es bietet sich der Internationale Strafgerichtshof (IStGH) für die Aufgabe der völkerrechtlichen Ahndung internationaler Terrorakte an. Obwohl derzeit nicht ausdrücklich in den sachlichen Zuständigkeitsbereich des Gerichtshofs einbezogen, könnten Terrorakte unter die bestehenden Völkerrechtsverbrechen, namentlich Völkermord, Verbrechen gegen die Menschlichkeit, Kriegsverbrechen und Aggression, zu subsumieren sein. Zum Gegenstand der Beweisführung werden neben möglichen terroristischen Gewaltakten mittels Massenvernichtungswaffen vorrangig die Anschläge vom 11. September 2001 gemacht.

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 23, no. 2, 2008) is out. Contents include:

• Donald R. Rothwell, Issues and Strategies for Outer Continental Shelf Claims
• Suk Kyoon Kim, Understanding Maritime Disputes in Northeast Asia: Issues and Nature
• Constance Johnson, Fisheries Enforcement in European Community Waters Since 2002Developments in Non-Flag Enforcement
• Shalva Kvinikhidze, Contemporary Exclusive Fishery Zones or Why Some States Still Claim an EFZ
• Rosemary Rayfuse, Mark G. Lawrence, & Kristina M. Gjerde, Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Seas Uses

Conference: Complementing IHL: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations

The Minerva Center for Human Rights at the Hebrew University of Jerusalem and the Tel Aviv Delegation of the International Committee of the Red Cross (ICRC) will host a conference on "Complementing IHL: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations," June 1-3, 2008, in Jerusalem. (I previously noted the call for papers here.) The program (with links to a number of the draft papers) is here. Why attend?

The international laws of armed conflict, known as IHL (international humanitarian law), were developed by the international community in the aftermath of World War II in an attempt to reduce the harm to civilians during periods of armed conflict. However, many (if not most) modern conflict situations in the world – such as those in Gaza, Lebanon, Iraq, Afghanistan, Somalia and Kosovo – no longer conform to the classic inter-state or even intra-state models of violence that underlie the application of IHL. This important international conference brings together 30 experts in an attempt to identify types of conflict situations that are at present inadequately regulated, and to explore the potential for developing IHL or locating new normative sources that may apply. In doing so, the conference hopes to encourage the development of international law in ways that are conducive to the attainment of IHL's overriding goals: the mitigation of harm and suffering and the promotion of humanitarian interests, even in times of conflict.

Higgins: Keynote Address at the International Law Commission's 60th Anniversary Commemoration

Judge Rosalyn Higgins, President of the International Court of Justice, gave the following keynote address on May 19th at a special commemorative event celebrating the sixtieth anniversary of the International Law Commission:

I am delighted to be invited to speak at the sixtieth anniversary of the International Law Commission (ILC), an institution for which I have the greatest admiration.

The ICJ and the ILC are both fully engaged in the interpretation and development of international law, while each performing rather different functions. The International Court pursues the purpose laid down in Article 1 of the United Nations Charter: the maintenance of international peace and security. Its particular contribution to this goal is the judicial settlement of international disputes. The Court can only address those legal issues brought before it by States under its contentious jurisdiction or by United Nations organs or authorized agencies seeking an advisory opinion. The Commission finds its purpose in Article 13 (1) (a) of the Charter, which mandates the General Assembly to “initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification”. The Commission is free to choose the legal topics of its study, subject to giving priority to any request made by the General Assembly.

What can the members of such an institution reasonably hope for when celebrating a landmark anniversary? They can surely wish that all the heavy work they have engaged in will have been for some tangible purpose and that their labours will be held in high regard.

Over the past six decades the ILC has dealt with some hugely challenging themes - and everyone of us in international law is indebted to the Commission for taking them on. The ILC is entitled to feel that its work has had a significant impact. This impact is not only measured by the extent to which draft Articles have been formally accepted by Governments or indeed passed into treaty mode. The work of the ILC in all its forms - the reports of Special Rapporteurs, draft articles, commentaries, guiding principles, analytical studies - is a rich source of scholarly analysis as to the practice of States and the often problematic underlying issues.

Whether a text prepared by the ILC represents customary international law, whether in its commentaries or Yearbooks it elucidates divergent viewpoints on difficult points, the ILC, through its endeavours, makes a major contribution to international law. The evidence, if evidence be needed, is that we all - including the International Court of Justice - have frequently had occasion to turn to ILC studies on particular matters.

In many cases before the International Court the parties have relied upon - and the Court has carefully considered - the work of the ILC, which thus makes its indirect contribution also to international dispute settlement.

If we look at cases decided by the Court over the past three years, it is remarkable to note the high percentage in which reference has been made to the work of the ILC. The Court has referred in its reasoning to the ILC Articles on Responsibility of States for Internationally Wrongful Acts in its Judgment on the merits in the Congo v. Uganda case, its Order on the Request for the Indication of Provisional Measures in the Argentina v. Uruguay case, and, most notably, in its Judgment in the Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro). In this last case, the Court also shared the view of the ILC’s State Responsibility Articles on the correct legal test for the attribution of responsibility to a State of the conduct of non-State entities, and concurred with the ILC’s definition of genocide in customary international law expressed in its Commentary to its Articles in the Draft Code of Crimes Against the Peace and Security of Mankind.

The Vienna Convention on Diplomatic Relations 1961, an instrument concluded on the basis of prior drafts prepared by the ILC, was in issue in the Congo v. Uganda case, while the ILC draft Articles on Diplomatic Protection 2006 made their appearance in several aspects of the Judgment on preliminary objections in the Guinea v. Congo case. And, in the Judgment on the merits in the Nicaragua v. Honduras case, the Court even had occasion to refer to the early work of the ILC as regards the 1958 Convention on the Territorial Sea and Contiguous Zone.

Conversely, the case law of the Court manifestly has relevance for the work of the ILC. Among the recent jurisprudence of the Court, the Judgment in the Guinea v. Congo case touches on the same theme as the ongoing work of the Commission on the “expulsion of aliens”. The forthcoming Judgment in the Djibouti v. France case is being watched for what it may say on the topic of “immunity of State officials from foreign criminal jurisdiction” and of “Head of State immunity”.

The International Court is mindful of its two-way relationship with the ILC and takes every opportunity to foster mutual respect. To take a recent example: when a question arose in the Guinea v. Congo case regarding the status in customary international law of a rule contained in the ILC draft Articles on Diplomatic Protection, the Court found that the facts before it did not seem to correspond to the scenario envisaged in the draft Article. The question of whether or not the ILC’s draft Article reflected customary international law was therefore carefully and deliberately left open. For its part, the ILC has on occasion paused in its work on specific topics, including the final formulation of your views on guarantees and promises of non-repetition, until the ICJ had pronounced in certain pending cases.

The mutual influence between the ICJ and ILC has been apparent since the inception of these institutions. In fields such as the law of treaties, the law of the sea, the law of the non-navigable uses of international watercourses, State responsibility and State succession, the two institutions have for many decades found inspiration in each other’s work.

*

Over and above the strong interest that the ICJ and ILC each take in the substantive work of the other, we also maintain significant personal links. For over a decade now the ILC has invited the President of the International Court of Justice to come to Geneva to address the plenary meeting and engage in an exchange of views. These exchanges are greatly appreciated by the Court.

Thirty-three judges of the Court have previously served as members of the Commission. [FN1] Many of them were elected to the Court during their term on the Commission or immediately after the expiration of their term. Eight of these judges subsequently served as President of the Court. Currently, seven judges (or nearly half the Bench) are former members of the Commission: Vice-President Al-Khasawneh, Judge Shi, Judge Koroma, Judge Simma, Judge Tomka, Judge Sepulveda, and Judge Bennouna. I can assure you that they ensure that the work of the ILC is always in the Court’s sights.

The ILC has been a forum for some of the “greats” in international law. It would be invidious for me to single out present members of the Commission, who most certainly will be in the pantheon of the great international lawyers. But I can with more safety make reference to some names of the past, who sadly are no longer with us. Some of their work may have been controversial, but even today who can doubt the tremendous contribution to the field of public international law made, while at the ILC, by such as Ago, Jiménez de Aréchaga, Reuter, Thiam, Tunkin, and Waldock.

*

The sixtieth anniversary of the International Law Commission is an occasion for reflection on past achievements, but also for looking ahead. We are now living in an era in which international law is longer the exclusive domain of international courts and institutions - international law issues are increasingly being considered by national and regional courts.

I note that the ILC has established co-operative relationships with the Asian-African Legal Consultative Organization, the European Committee on Legal Co-operation and the Committee of Legal Advisers on Public International Law, the Inter-American Juridical Committee, and other regional and inter-regional organizations. Article 26 of the ILC Statute provides for the distribution of the Commission’s documents to national organizations concerned with international law.

National courts increasingly see their role not as endeavouring to keep international law at arm’s length, but as deciding issues before them, which task now often entails an incidental determination of points of international law.

As I read the various important judgments of different national courts, I see frequent reliance by Bar and Bench alike on the work of the ILC. The reports, draft Articles, and commentaries are cited and appreciated for their systematic analysis of State practice, jurisprudence and doctrine. It seems that the ILC has attracted a significant new audience of national lawyers and judges.

It is fitting that today’s solemn meeting will be followed by a seminar on with national Legal Advisers. I am impressed by the hard-headed and realistic nature of the topics that have been chosen for discussion. While we all recognise that important work is being done by ILC, it is also true that it exists in a world of States, with their own interests. The challenge of, among other things, improving the interaction between the Commission and Governments is a very real one. And, as ever, the ILC will continue to need top level members, prepared fully to commit their time and expertise to the service of the ILC.

*

On behalf of all the Members of the International Court of Justice, it gives me great pleasure to participate in this solemn meeting to mark the sixtieth anniversary of the International Law Commission. In the past decades, the ILC has provided the expertise necessary to codify complex areas of international law and displayed the creativity required for the progressive development of international law. It has played the role of both expert and pioneer. We wish you every success in your mandate, and in developing and appraising the methods of work, for the continuing benefit of international law as a whole.

[FN1. R. Ago, B. A. Ajibola, A. S. Al-Khasawneh, M. Bedjaoui, M. Bennouna, R. Córdova, A. El-Erian, T. O. Elias, J. Evensen, L. Ferrari Bravo, N. Elaraby, Sir Gerald Fitzmaurice, A. Gros, L. Ignacio-Pinto, E. Jiménez de Aréchaga, V. M. Koretsky, A. G. Koroma, M. Lachs, Sir Hersch Lauterpacht, Nagendra Singh, Ni Zhengyu, L. Padilla Nervo, Sir Benegal Rau, J. M. Ruda, S. M. Schwebel, B. Sepúlveda-Amor, J. Sette-Camara, Shi Jiuyong, B. Simma, J. Spiropoulos, P. Tomka, V. S. Vereshchetin, Sir Humphrey Waldock.]

Bellinger: Remarks at the International Law Commission's 60th Anniversary Commemoration

John B. Bellinger, Legal Adviser to the U.S. Secretary of State, gave the following remarks on May 19th at a special commemorative event celebrating the sixtieth anniversary of the International Law Commission:

Good afternoon. I am delighted to participate in this commemoration of the 60th Anniversary of the International Law Commission. I am particularly pleased to be a co-speaker on this panel with Professor Galicki. The topic presents us with an important opportunity to assess the “state of the union,” so to speak, between governments and the Commission, sixty years after States decided it was in their interests to establish the Commission.

During its first 25 years – a period sometimes called the ILC’s “Golden Age” – the Commission worked closely with governments to produce a number of seminal treaties. Indeed, the Commission’s productivity during these years was striking; its work included the 1958 Geneva Conventions on the High Seas and related law of the sea topics; the Convention on the Reduction of Statelessness; the Vienna Convention on the Law of Treaties; and the Vienna Conventions on Diplomatic and Consular Relations. By and large, the Commission’s work in this period was animated by the purpose and vision States had for the Commission some sixty years ago.

As a result of its work, the ILC has had significant influence over the years, not least in domestic and international judicial decision-making. It is notable, for example, that United States federal courts have relied on the Commission’s work in more than 50 published cases, including cases involving claims of diplomatic immunity and jurisdiction over vessels on the high seas. In the area of maritime boundary issues, the ILC’s work has on occasion been dispositive in U.S. courts – in particular in line of cases before the U.S. Supreme Court involving disputes between the US Government and various U.S. states over control of submerged lands off the coastline. The disputes turned on the definition of “inland waters” under a U.S. domestic law known as the Submerged Lands Act. After finding that the Act left it to the courts to supply an appropriate definition, the Supreme Court concluded that the meaning of “inland waters” “should conform to the Convention on the Territorial Sea and the Contiguous Zone.” In other words, the Court found that the meaning of U.S. domestic law should reflect the international law standard established by the ILC-produced treaty. The Convention, the Court later noted, was the “culmination of long years of work by the International Law Commission.” And in subsequent cases applying the term “inland waters” in the Submerged Lands Act, the Court looked not to the Act itself to inform its decision, but to the Convention and to relevant ILC reports, drafts, and commentaries.

Compared to its productive early period, it is somewhat less clear what the ILC’s core mission is or should be today. Michael Wood alluded to this in his introduction; he noted that in some sense, the ILC has been a victim of its own early success. There was significant reflection on this issue on the occasion of the 50th anniversary, particularly regarding the selection of appropriate topics for the Commission’s work. But I want to suggest that a productive relationship between governments and the ILC is equally important to the relevance and continuing vitality of the Commission’s work in the future.

The title of this panel suggests a certain skepticism that the relationship between the ILC and governments is all that it should be. And there is the sense that governments and the ILC are not paying as serious attention to each other as they used to. There are several possible reasons for this. One may simply be that many of the classic topics initially envisioned by Hersch Lauterpacht, the international jurist who drafted the Commission’s initial plan of work, were successfully completed early on. Another may be that the demands on governments and Legal Advisers today allow less time for reflection on progressive development than was the case some decades ago. Resources are scarce to meet governments’ ever more pressing responsibilities. Still, I think improving the quality of its interaction with states should be a key priority for the ILC. It may be the most important way the Commission can maintain relevance and legitimacy in the future.

Successful interaction between governments and the ILC has several benefits. First, it serves to ensure the work of the ILC is practical, that it addresses real problems in inter-state relations. Second, it facilitates solutions to those problems that are informed by, or grounded in, actual State practice. And third, cooperation with governments will tend to promote acceptance of the ILC’s work by States; the more States view themselves as participating with the ILC in developing international law, the more likely they are to view the ILC’s work as relevant and useful.

The fundamental structure and channels of State-ILC interaction were laid out in the original ILC Statute in Articles 16-18 and haven’t been significantly updated since. As you know, the Statute provides for regular, staged interaction — or at least that the Commission must seek government views at various benchmarks along the way.

The present state of interaction presents several issues that both the Commission and governments should consider. I want to mention four. First is that interaction and cooperation necessarily require communication between the ILC and States on matters related to the Commission’s work. That’s a basic point, but an important one. One difficulty for the ILC is the fact that governments can’t be compelled to give their views or share State practice. In fact, there may be reasons why in some cases they’re affirmatively reluctant to do so. This can be a burden on the Commission, and puts the ILC at a special disadvantage in an era when treaties are much more likely to be developed by States acting under the auspices of specialized agencies or other international organizations than they are to emanate from the ILC. In this regard, States should consider being more responsive, and not limiting themselves to the passive role of merely answering ILC requests. States should view the Commission’s work in a positive and active way, and they should see the Commission as an important potential instrument for the attainment of their mutual objectives and look for ways in which the ILC can make practical contributions. This means being pro-active in advising the Commission, even if only informally, as to what topics and projects would serve their needs and interests, rather than simply waiting for the Commission to set the agenda.

Second, the composition of the Commission is critical. Here it is important to strike a good balance between academic experts on the one hand, and practitioners of international law with governmental experience on the other. The Commission benefits a great deal from the participation of those with real-world acquaintance with the needs and practice of governments, and practical experience in negotiating legal texts and accommodating divergent viewpoints. Commission membership has included foreign ministry legal advisers, ambassadors and other state officials, who have made unique contributions in ensuring results that are both competent and acceptable to states. A number of American legal experts have participated as members of the Commission over the years, and we believe this has been of mutual benefit to the Commission and to the United States. We look forward to the time when the Commission will once again have an American among its membership.

Third, the ILC’s work should focus on real-world problems and respond to the practical needs of states and their populations. One example of that kind of work is the recently-adopted principles on liability for transboundary harm. Those principles offer useful and practical guidance to states that, if used in national and regional arrangements, can translate into real benefit for the victims of transboundary environmental damage. Another example is the Commission’s current work on transboundary underground aquifers, which, if completed as a set of recommended guidelines, has a similar potential for practical benefit to the states and populations that have come to depend on these resources. For states struggling to cope with pressures on transboundary aquifers, the Commission is well-positioned to develop a set of flexible tools for using and protecting these resources. Likewise, the topic of “Responses to Natural Disasters” has definite practical potential. The loss of life resulting from the 2004 tsunami in Indonesia and other more recent natural disasters in Myanmar and elsewhere remind us of the real-world importance of mitigating the effects of such disasters. We hope the Commission will focus its study on areas of the law that provide practical mechanisms for, among other things, facilitating coordination among providers of necessary disaster assistance and improving the access of people and equipment to affected areas where agreed to by all parties.

Unfortunately, it is not always easy to be responsive to the practical needs of states. For example, during the earliest phases of its consideration of the topic of unilateral acts, the Commission struggled with theoretical formulations that did not accord well with the practice and understanding of states. Still, in due course, after a meticulous examination of relevant state practice and opinion in concrete cases, the Commission was able, under Alain Pellet’s guidance, to produce a more coherent and useful set of guiding principles.

A fourth and related issue is that the Commission should be careful to avoid taking up topics that are inherently political in character or that intrude on the jurisdiction of other bodies in the international system. In this regard, the Commission wisely decided not to take up the proposed topic of “collective security,” which could easily have impinged on the responsibilities of other UN bodies, and would likely have involved it in political disputes that could have undermined its credibility with states.

To bring about more productive interaction, the ILC might consider possible procedural adjustments.

For example, we might think about whether opportunities for feedback to the Commission should remain as formal as they are. Governments often complain that they’ve had little time before the annual Sixth Committee meeting, for example, to properly digest Commission reports released in September. Why not, then, consider opportunities for feedback on a rolling, less formal basis after Sixth Committee? Now, I don’t want to shock you here, but we might even make use of email. The Commission could establish email points of contact in Foreign Ministries who could be charged with providing follow-on comments as views develop, or could be tapped by Commissioners when they have questions about how a government might react to certain positions.

Another possibility is that the Commission could set aside time during its sessions in Geneva to invite state representatives and experts to come and present their views on specific proposals under consideration, both formally and informally. This would provide a fuller opportunity for interaction between states and ILC members than the Sixth committee debates, and in particular allow for fuller exchanges between government experts and the ILC members that are working on specific topics. It would also encourage Missions in Geneva to have at least one officer follow the Commission’s work more generally.

Additional measures could be put into effect to enhance transparency during Sixth Committee debates. Portugal suggested in 2005 that a verbatim record of interventions in electronic form provided by delegations to the Secretariat, instead of less precise summary records, would provide a simple way to enhance dialogue.

Finally, the ILC should continue to emphasize making its report as readable and accessible as possible. This is not easy in dealing with topics as complex as those with which the Commission deals but it is nonetheless an important goal.

It may be that these are not all workable suggestions for one reason or another, but I hope they prompt us to think further these issues. I am optimistic that by improving interaction between states and the ILC, the Commission can ensure that its work over the next 60 years continues to influence and shape the field of international law as it did over its first 60 — and perhaps in ways different from the great treaty development of the early years, but still, no less valuable.

Workshop: Caflisch

Lucius Caflisch (Graduate Institute of International and Development Studies & Member, International Law Commission) will give a talk today at the Graduate Institute of International and Development Studies on "The International Law Commission's Sixtieth Anniversary - Results and Perspectives."

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 8, no. 2, 2008) is out. Contents include:

• Michael O'Flaherty & John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles
• Christina Zampas & Jaime M. Gher, Abortion as a Human Right - International and Regional Standards
• Dinusha Panditaratne, Reporting on Hong Kong to UN Human Rights Treaty Bodies: For Better or Worse Since 1997?

ICJ: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)

Today, oral proceedings commenced in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). The hearings, which will last through Friday, pertain only to Serbia's preliminary objections regarding jurisdiction and admissibility.

In its application, Croatia alleged that "[b]y directly controlling the activity of its armed forces, intelligence agents, and various paramilitary detachments, on the territory of . . . Croatia, in the Knin region, eastern and western Slavonia, and Dalmatia," Serbia and Montenegro was liable for "ethnic cleansing" committed against Croatian citizens, "a form of genocide." Croatia requested reparations, included a declaration that Serbia and Montenegro "ha[d] breached its legal obligations" to Croatia under the Genocide Convention and a finding that Serbia "ha[d] an obligation to pay to . . . Croatia, in its own right and as parens patriae for its citizens, reparations for damages to persons and property, as well as to the Croatian economy and environment . . . in a sum to be determined by the Court." Croatia founded the Court's jurisdiction on Article IX of the Genocide Convention.

In accordance with ICJ practice, the parties' written pleadings have not yet been made public. An ICJ press release, though, indicates that Serbia bases its preliminary objections on a number of grounds:

• that "the Court lack[s] jurisdiction over the dispute because the FRY was not party to the Genocide Convention on 2 July 1999, the date proceedings were instituted before the Court. Serbia [contends] that it did not become party to the Convention until 10 June 2001, after its admission to the United Nations on 1 November 2000, and, in addition, that it never became bound by Article IX of the Genocide Convention because it entered a reservation to that article when it acceded to the Convention";
• "that Croatia’s Application was inadmissible insofar as the most serious incidents and omissions described therein occurred prior to 27 April 1992, the date on which the FRY came into being, and could not therefore be attributed to it"; and
• "that certain specific claims made by Croatia were inadmissible or moot."

The verbatim record of the proceedings (updated daily) can be found here.

Dimsey: The Resolution of International Investment Disputes: Challenges and Practical Solutions

Mariel Dimsey has published The Resolution of International Investment Disputes: Challenges and Practical Solutions (Eleven International Publishing 2008). Here's the abstract:

This work deals with the current state of investment dispute resolution and analyzes the problems associated with investor-state arbitration. In search of solutions, the author examines developments in the existing legal framework and looks at the mechanisms under existing domestic and international systems, such as judicial review and class actions, to see if these can be applied to investment dispute resolution.

The author concludes that the features of traditional arbitration are not flexible enough to meet the needs of this modern form of international dispute resolution: investment arbitration is now entering a new phase of its development. The traditional, typically arbitration-related issues of consent, privity and confidentiality are making room for the now more important questions of disclosure, transparency, legal certainty and consistency.

The author calls for setting up a model procedure specifically created for international investment disputes as this would enable the establishment of a tailor-made process for this ever-growing area of law.

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (Vol. 85, no. 1, 2008) is out. Contents include:

• Laurent Chassot, L’archétype anglo-saxon ou la mort annoncée du droit français – Le cas du Vanuatu
• Junmin Ren, Les dispositions de l’OMC sur les brevets liés à la santé publique et leur transposition dans le droit chinois
• Célestin Sietchoua Djuitchoko, Le degré de régulation constitutionnelle dans les États d’Afrique noire francophone depuis les transitions démocratiques
• Christophe Verdure, La réglementation des fusions transfrontalières: une nouvelle étape dans la modernisation du droit européen des sociétés

New Issue: African Journal of International and Comparative Law

The latest issue of the African Journal of International and Comparative Law (Vol. 16, no. 1, March 2008) is out. Contents include:

• Manisuli Ssenyonjo, Towards Non-Discrimination against Women and de Jure Equality in Uganda: The Role of Uganda's Constitutional Court
• E. S. Nwauche, The Right to Freedom of Religion and the Search for Justice through the Occult and Paranormal in Nigeria
• Prabhakar Singh, From 'Narcissistic' Positive International Law to 'Universal' Natural International Law: The Dialectics of 'Absentee Colonialism'
• Edwin Mujih, The Regulation of Multinational Companies operating in Developing Countries: A Case Study of the Chad-Cameroon Pipeline Project

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 11, no. 2, June 2008) is out. Contents include:

• Carsten Fink & Martín Molinuevo, East Asian Free Trade Agreements in Services: Key Architectural Elements
• Henning Grosse Ruse-Khan, A Pirate of the Caribbean? The Attractions of Suspending TRIPS Obligations
• Rudolf Adlung & Martín Molinuevo, Bilateralism in Services Trade: Is There Fire Behind the (Bit-)Smoke?
• James Harrison, Legal and Political Oversight of WTO Waivers
• Caroline E. Foster, Public Opinion and the Interpretation of the World Trade Organisation's Agreement on Sanitary and Phytosanitary Measures
• Guanghua Yu & Hao Zhang, Adaptive Efficiency and Financial Development in China: The Role of Contracts and Contractual Enforcement