This article is authored by Pritha Lahiri, a Fourth Year Student at Institute of Law, Nirma University.
Introduction The Investment Treaty regime is centred on adjudicating investment disputes through International Investor-State arbitration. Over the past few decades, international investment law has developed dramatically, giving rise to numerous legal problems. One of those concerns is particularly seen in how European Union ("EU") legislation and the Energy Charter Treaty ("ECT") interact. In particular, when it comes to Article 26 (the ECT's dispute resolution process) and its application in the intra-EU context, the relationship between the ECT and EU law is marked by complexity and legal uncertainty. Since the Achmea decision in 2018, the Court of Justice of the European Union ("CJEU") has been in the spotlight, and in 2021, the Komstroy decision brought its attention to a new level. In light of these developments, the present article analyzes the muddy waters of the EU Law and the ECT. It further discusses the future developments that can be expected out of the ruling by the CJEU. The Energy Charter Treaty: A background The ECT is a multilateral investment treaty signed in the year 1994. It was passed to promote investments in the energy industry, specifically by granting investment protection rights to energy investors in foreign states. The European Union, its member states, and other non-member states are among those who have signed it. One of the critical aspects of the ECT is that it gives individual investors the right to commence an arbitration proceeding against a host state under Article 26 of the treaty if one of the provisions is breached. As a result, Article 26 offers investors a very effective procedure for resolving disputes outside the purview of national courts. Being a multilateral treaty, the ECT's provisions have been enforced consistently among its signatories, making it one of the most frequently invoked investment protection agreements concerning international investment disputes, including the EU. Due to claims that such arbitration processes undermine the judicial independence of the EU legal system as enshrined in the constitutional framework of the EU Treaties, the topic of investor-State dispute settlement inside the EU has gained attention. In its recent judgement in Komstroy, the CJEU) imprinted the same rationale and limited the effects of international tribunals on internal EU governance. In doing so, however, it sidelined the International Law principles regarding treaty interpretation. The Beginning of the End: Early signs of conflict The Achmea Ruling The CJEU ruled that the arbitration clause under Article 8 of the Netherlands-Slovak Bilateral Investment Treaty ("BIT") is incompatible with EU law and order, making it obsolete. This case is known for completely disregarding the rules of public international law while upholding the supremacy of EU law. The CJEU additionally noted that because these issues are referred to tribunals outside the EU's authority, arbitration proceedings under the BIT may impair the effectiveness of EU legislation. Although the Vienna Convention on the Law of Treaties (“VCLT”) is the international instrument that governs the conclusion, interpretation, validity, and invalidity of treaties, the CJEU surprisingly did not make a peep about it. Additionally, despite the fact that the New York Convention governed the dispute, the CJEU made no mention of the convention. European Commission's Intervention The European Commission has represented itself as an amicus-curiae before domestic courts and arbitral tribunals in nearly all intra-EU disputes, including those arising from BITs and ECTs, which has exacerbated the issue. It has also lately started infringement proceedings against EU members like Sweden, Portugal, Romania, Luxembourg, and Austria for failing to terminate the intra-EU BITs. The Komstroy Ruling: A Rippling Implication on the ECT This case involves a dispute over an energy contract under the ECT between Komstroy and a few state-owned companies in Moldova (SOEs). The United Nations Commission on International Trade Law (“UNCITRAL”) Rules were then followed to initiate arbitration, which was later contested at the Paris Court of Appeal. The Parisian Court subsequently asked the CJEU for a preliminary ruling on the matter. The main issue was whether Intra- EU arbitration under Article 26 of the ECT is in sync with the EU legal system. In assessing the issue, the CJEU relied on the judgment of Achmea and held that it has jurisdiction under Article 267 TFEU due to the following reasons- i) ECT is an integral part of the EU legal order because EU is a signatory to the ECT ii) Since the seat of arbitration was in Paris, the law of the land would be European Law and iii)To prevent differences in the future regarding the interpretation and in the interest of the EU legal order. By exercising its jurisdiction under Article 267, the CJEU, in a landmark move, ruled that Article 26 of the ECT is incompatible with the EU Law. The CJEU confirmed its jurisdiction to interpret the ECT, although the underlying award involved the application of the ECT to a dispute between an investor from a non-EU country (Ukraine) and another non-EU country (Moldova), failing to address the VCLT principles, which is the fundamental source when it comes to the interpretation of treaties. Ironically, Article 3(5)of the Treaty on European Union, which outlines the EU's founding principles, and Article 216 of the Treaty on the Functioning of the European Nation, which addresses the EU's organizational structure, both demonstrate that the EU is committed to upholding and working to develop international law and that the international agreements it has made are legally binding. Even though this decision suggests that investor-state arbitration should no longer be used to resolve intra-EU disputes under the ECT, the other non-EU ECT Parties and their courts (on issues relating to the recognition or enforcement of ECT arbitral awards), as well as the arbitral tribunals established to consider the ECT itself, may not be impacted by the Komstroy judgement per se. This is primarily due to the fact that the International Centre for Settlement of Investment Disputes ("ICSID") or the UNCITRAL Arbitral Tribunals established for dispute resolution under Article 26 of the ECT are mandated to apply PIL rules and construe the ECT in accordance with Article 31 VCLT (General Rules of Treaty Interpretation). Public International Law versus autonomy of the EU: A Tale of Regime Clash? The rulings in Achmea and Komstroy make it abundantly obvious that the principles of autonomy, consistency, uniformity, and supremacy of EU law—and, by extension, the CJEU's final interpretive power —apply at all times. The CJEU has previously felt that to safeguard its absolute power against the impacts of public international law, it was necessary to depend on the most fundamental elements of EU law. A decade prior, in the landmark Kadi case involving the purported supremacy of UN Security Council Resolutions based on Article 103 of the UN Charter, the CJEU made it abundantly clear that a foreign treaty cannot impact the independence and supremacy of the EU legal order. The CJEU has also shown a similar attitude toward the WTO Appellate Body and the European Court of Human Rights (ECHR). Contrarily, the concepts of EU primacy and autonomy are of little or no significance when viewed through the broader prism of Public International Law. International Law accords nation-states equal treatment. The preamble of the VCLT reflects this understanding by stating that while interpreting a treaty, it should take into consideration the principles of international law enshrined in the Charter of the United Nations -“equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the internal affairs of States, of the prohibition of the threat or use of force and universal respect for, and observance of, human rights and fundamental freedoms for all." Such opposite notions conclude that the vertical, supremacy- and autonomy-driven EU legal structure and the horizontal nature of public international law do not mesh. Intra-Eu ECT Arbitrations: What is Next? The Komstroy ruling has left open a myriad of challenges which are as follows:
Given that intra-EU investment arbitration awards are based on arbitration terms that violate EU law, the Commission is unlikely to find them compatible with the internal market in the wake of Komstroy. Way Forward The Komstroy decision is just the tip of an iceberg that could eventually weaken intra-EU treaty arbitrations under the ECT. There is no "one size fits all" solution, although the following suggestions can be given in relation to the conflict resolution process: First and foremost, the investment should be set up in a way that, even if a disagreement emerges with an EU Member State, it is not viewed as an intra-EU dispute. This can be accomplished by making an investment through a subsidiary in a non-EU country that has BIT agreements with EU member states. Secondly, either UNCITRAL or ICSID arbitration should be selected as the arbitral tribunal. This is because the CJEU will not have an impact on these tribunals due to these being autonomous of EU legislative orders. These tribunals have, Kompetenz- Kompetenz, i.e., the ability to decide on jurisdictional questions, and they draw their authority from international treaties and the PIL mechanism containing a state's offer to arbitrate (such as the ECT), not from EU Law. Thirdly, it is advisable that the location of the arbitration tribunal in the event of an arbitration dispute under a BIT or the ECT be outside of the EU. By doing this, CJEU will not be able to influence the awards. Finally, the European Commission could be given the authority to negotiate the question of the intra-EU applicability of Article 26 ECT in the ongoing modernization of the ECT as a final potential option to resolve the dispute between the EU and the ECT. This will address the current dispute over jurisdiction and result in a uniform application of the ECT's provisions to all signatories. Final Thoughts The Komstroy ruling yet again has europeanised the dispute even when ECT is an international treaty, and the CJEU should have applied the rules of Public International Law. The problem may have origins in the EU's legal structure, which is not aligned with International Law. While there is no uncertainty that the CJEU views the ECT as being inapplicable for intra-EU disputes, and as a result, no arbitation proceedings may be brought by an investor from another EU member state against an EU member state, determining whether there will be an epilogue from member states, arbitral tribunals, domestic courts, and ultimately from the CJEU is still up in the air.
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7/3/2022 Climate Change Armed Conflict and the Environment: A ‘Double’ Humanitarian Crisis in East AfricaRead NowThis article is authored by Sampurna Mukherjee and Vikrant Sharma who are Fourth Year B.A.L.L.B Students at Symbiosis Law School, Pune.
The relationship between ‘Climate Change’ and ‘Armed Conflict’ has remained inconspicuous for the longest time. In a multipolar globalised world deeming ‘human security’ i.e. freedom from fear and freedom from want as the two most important components in this concept, to be the raison d'être behind an individual’s existence and political organisation, this interface between climate change and armed conflict is no longer speculative. While aiming for environmental protection, earlier international humanitarian laws did not envisage a relationship between climate change and armed conflict, that has been exploited later on which would be seen in this piece. These laws state, while engaging in armed conflict, unnecessary and excessive destruction of the environment was forbidden, unless there were precise and justifiable military reasons to do so. The recent conflicts seen in Cabo Delgado and Tigray demonstrate the conjoint impact of climate change and armed conflict on environmental degradation, protected only partially by the earlier humanitarian laws on armed conflict and environmental protection. Article 3 of the third Geneva Convention applicable to Prisoners of War, 1949, provides that when an armed conflict has occurred in a ‘local or municipal territory’, there are human rights guarantees against violence to life, person and personal dignity to all inactive participants in the hostility. This is significant in light of the grave circumstances plaguing Cabo Delgado, including massive displacement, child marriages, deplorable conditions of poverty and hunger that is on the rise as well as crimes committed against the human body and property. Cabo Delgado has a history of being struck periodically by natural calamities from its own unique geographically vulnerable location and man-made activities of deforestation and intensive oil gas and mining activities. The armed conflict in Northern Mozambique's Cabo Delgado in began 2017 between the Islamist Extremist group Al- Shabab, the Mozambican armed security forces, and the private militia engaged by the government. After Cyclone Kenneth struck in 2019, the area, known for its vulnerability to climate change, was ravaged further. The already fragile conditions deteriorated further as a result of the pandemic. However, the circumstances are not very different in Tigray that is located 3000 kms away, a parallel drawn for the purpose of comparison between the two, in similar predicaments in so far as the applicable laws are concerned. Ethiopia’s Tigray region has similarly grappled with the consequences of climate change and armed conflict. Battling locust infestations, land degradation and rising water levels has potentially propagated the armed conflict further in the absence of governmental action, and exacerbated the ongoing armed conflict between the Tigray People’s Liberation Front (TPLF) and the Ethiopian federal government. The environmental challenges had contributed to local support to the rebel group, after reports of deliberate starvation, poverty, lack of education and health emergency, with hopes of getting access to basic resources and monetary compensation, by the TPLF. With the recent retreat of the TPLF after looming ‘civil war concerns’, the consequences of climate change incessant food insecurity induced hunger, reliance on rain-fed agriculture, frequent droughts and floods in the light of rapid population growth and increasing temperatures on the armed conflict, that additionally contributed to the ability to advance beyond the Tigray region and close in on the capital of Ethiopia, cannot be undermined in leading to another ‘armed conflict’ if the case arises in future. Armed conflicts have repeatedly capitalized on the vulnerability of climate-related risks for military gains. Environmental protection is an integral part of the existing human rights law, since there are immense implications on the civilians co-existing with the natural environment. However, the ambiguous protection can also be used to hinder environmental protection. It has been found that there is direct relationship between natural and man-made climate change related risks and an affinity to support armed conflict miscreants, something that maybe absent if there are adequate safeguards, both national and international put in place, for security human security for the civilians and the environment. In other words, the rise of climate change risks only exacerbates chances of a armed conflict, that not only has a detrimental the civilians but also the environment and its components at large, as seen in the twin instances above. It can be difficult to determine if the destruction of the environment is conclusively barred by treaty or customary law because the directness of the military impact, including whether it is wanton or of nominal military value, whether reasonably connected as per the ‘imperative demands’, and the remoteness in the chain of causation are taken into account to determine if a violation took place. For example, Protocol I of 1977 specifically prohibits acts that can cause long-term damage to the environment in an international armed conflict. The Rome Statute, with hardly 100+ parties, declares it a war crime to intentionally cause ‘wide-spread, long term and severe damage’ to the environment. However, the same section places a caveat on this, stating that the destruction caused must be ‘clearly excessive’ with respect to the military gains anticipated from the act causing it. Hence, not only some of the standards are contradictory and at best found to be open to debate and confusing, it does lead to an unavoidable laxity, unsupported and confounding to the legal framework and contents at hand. The intense militarisation through armed conflict and the capability of climate change to affect civilians requires sufficient safeguards, with an ancillary focus on stable governance, to name one. While the current laws could protect the environment, their limitations restrict enforceability owing to the ‘international’ state of affairs, which the interchange between international humanitarian law and international environmental law, that was held to be not mutually interchangeable in the present circumstances, garners attention but not appropriate and proportionate action. It is only logical that the next step should provide comprehensive protection to the environment as an asset shared by humanity, regardless of which party wins an armed conflict for all the stakeholders overall. 6/27/2022 Special and Differential Treatment to Least Developing Countries under Article 6 of Fisheries Subsidies AgreementRead NowThis article is authored by Sanket Das and Bhanu Pratap Samantaray, Penultimate Year Students of Law, National Law University, Odisha.
Introduction Fisheries is one of the most important and vital areas for Least Developing Countries(LCDs) to achieve food security. Subsidies on fishing should not be a barrier to achieving this objective. LDCs and developing countries account for more than 70% of worldwide marine capture, which has become a primary justification for demanding special and differential treatment for LDCs. These LDCs are responsible for ensuring that fisheries subsidies agreement does not impose an undue burden on the rights of coastal states and other domestic fishing regimes. On the other hand, LDCs have a responsibility to ensure that small-scale global fish producers and those engaged in artisanal fishing are not restricted and that their livelihoods are protected. As a result, special and differential treatment becomes an important aspect of fisheries subsidies agreements. In this piece, the author discusses the emergence of the fisheries subsidies agreement and delves into Special and Differential Treatment under World Trade Organization and the problem surrounding the same. With this background, the piece attempts to discuss Article 6 of the Fisheries Subsidies Agreement. Emergence of Fisheries Subsidies Agreement In 1990, a need to control fisheries subsidies under international trade was realized, not only for greater equitableness, but also to preserve natural resources from depletion. Many reports published during WTO negotiations between 1992 and 1998 suggested that the effectiveness of fisheries management had been harmed by the provision of subsidies to sustain the fishing sector's income. In 1999, the Committee on Trade and Environment addressed the impact and implications of fisheries subsidies on the environment. Furthermore, in 2002, the elimination of subsidies that contribute to illegal, unreported, unregulated fishing and overcapacity was proposed in the United Nations World Summit on Sustainable Development. Drafting of the Agreement The group negotiating on disciplines was directed to speed up the process of presenting a thorough draft in the mandate stating the regulation for fisheries subsidies during Hong Kong's sixth ministerial conference in 2005. Moreover, the ratification of the UN Sustainable Development Goals in 2015 gave such discussions a boost, with the goal of eliminating subsidies that contribute to overcapacity, overfishing, and IUU fishing. Furthermore, in 2019, countries ramped up their negotiations on the drafts, debating a number of issues, including special and differential treatment for LDCs and developing countries. Finally, members of the WTO presented a revised fisheries subsidies negotiation draft and agreed to wrap it in the 12th WTO Ministerial Conference, Geneva, 2022. Since it becomes imperative to understand the Special and Differential Treatment under World Trade Organization to the LDCs to better appreciate the discussion on the Fisheries Subsidies Agreement, the author has briefly dealt with the same. Special and Differential Treatment under World Trade Organization In the 4th WTO Ministerial Conference, Doha, all special and differential treatment provisions were declared an intrinsic component of WTO agreements, and such provisions were reviewed for effective operation. The provisions of special and differential treatment were reinforced, and constituted an important component of WTO agreements in paragraph 44 of the Doha Declaration of 2001. Further, the Bali Ministerial Conference developed a framework to assess and evaluate the implementation of special and differential treatment provisions. The system will allow members to examine and evaluate all issues of the implementation of special and differential treatment provisions in multilateral WTO agreements. WTO members agree that providing flexibility to developing economies for the fulfilment of WTO obligations and commitments is a good idea, but they disagree with the extent to which these flexibilities have been granted. The members feel that such flexibility under special and differential treatment should be restricted to a certain level, and focus should be on specific needs of the LDCs. However, developing countries backed the treatment, claiming that such exemptions are vital for countries with limited resources and underdeveloped fishing sectors. Additionally, it is a well-known fact that under the WTO, member nations can choose whether they want to be classified as developing or developed countries, and this decision is subject to the objections of other WTO members. Countries, on the other hand, choose developing country status because it comes with various advantages, such as longer transitional periods and technical help from developed countries. At this juncture, it is to be noted that the notion of special and differential treatment is based on the fact that most treaties are geared toward developed member countries, which has negative consequences for the poorer or least developed countries. As a result, LDCs have been granted special and differential treatment in order to make international markets accessible and available to them without infringing on their international trade interests. At the same time, it protects LDCs from policies that have a direct impact on their economies. Thus, the main rationale for offering special and differential treatment to the LDCs seems to be their weak economic power and capacities. These advantages and privileges have been given to just those countries with low income levels, who will benefit from special treatment in order to integrate into the international trade. In essence, the claim of WTO status is a self-determinative procedure and the nations who choose to be developing receive discriminatory benefits from privileges that would not otherwise be granted. Such special and differential treatment is provided to LDCs by developed nations. The concern here is that the developed economies, which are already in a strong position to dominate the international trade market, can potentially abuse poorer countries. Furthermore, the provision of special and differential treatment to LDCs was not desirable for the developed countries. Apart from these, rather than aiding the economic needs of the LDCs, the focus has shifted to assisting them in implementing their trade commitments. Experts also disagree about the degree of differentiation across LDCs, and they reject the "One Size Fits All" approach to special and differential treatment. Also, there are no explicit objectives that serve as a determining element or yardstick for the LDC status of the member nation in the WTO. Having seen the background, the piece now delves into the issues looming around special and differential treatment of LDCs pertaining to fisheries subsidies. Issues with LDCs In today’s world, the majority of LDCs rely on the fisheries sector for their livelihood, food security and protein needs. Since these LDCs have wide exclusive economic zones, they are more interested in fisheries subsidies. This is also an important source of income for LDCs. It contributes to national income through its exports. It is a well-established fact that the interests of LDCs in fisheries subsidies have been evaluated in various ways and reasons. Job creation, fisheries livelihood, economic growth, poverty reduction, revenue generation through fisheries licencing, expanding their global catch share, exploit viable stock in international waters for commercial purposes, and so on are some of them. Yet, the fundamental point of disagreement is why each and every LDC should receive the same special and differential treatment when they have an unequal or extremely little part of global trade in fish products. For those LDCs that have a large proportion of global fish capture, tighter norms or disciplines should be implemented. Developing countries who do not meet the specified criteria or have a small proportion of the global fisheries trade may be allowed to provide subsidies for vessel operating costs and all sorts of fishing activities. Another critical problem was the issue related to the scope of subsidy restrictions and exemptions, as well as transparency, capacity-building support, and training requirements for LDCs. Last but not the least, there is the issue related to the subsidies granted to fishing activities that are artisanal, small-scale, or subsistence in nature. These fishing activities should be subject to more flexible laws than large-scale commercial fishing activities because they create less environmental impact. LDCs in relation to restriction of subsidies For LDCs, one of the most pressing challenges was the need to restrict subsidies that encourage illicit, unregulated, and unreported fishing, as well as overcapacity. Technical assistance to LDCs is required to ensure that no IUU vessels enter the nation's territorial limits, and such surveillance mechanisms must be in place with LDCs. The LDCs stressed that any discipline under subsidies should not impede their fisheries industry, particularly at the small-scale commercial or subsistence level, as this would limit the sector's development. Additionally, the LDCs focused on the importance of safeguarding trade and export. They also protect them against tariff increases. This can be accomplished by processing, marketing, and regulation of fisheries subsidies on the international market. On the other hand, LDCs urge that WTO Rules deal with the problem of distant fishing activity in their exclusive economic zones. Subsidies are the main source of distant water fishing. However, it is not a feasible choice for LDCs because of the high costs of vessels & equipment. Some nations address this argument by charging access fees to LDCs in the territories where they have entered and exploited fishing industries, but this is not sustainable based on present trends of overexploitation of fisheries resources. LDCs with extensive access to ocean frequently lack the capacity to exploit their fisheries resources on the high seas and in their exclusive economic zones. As a result, improving the capacity of LDCs is critical for ensuring sustainability and assisting them in properly harnessing fisheries resources. Discussing Articles 6 of the Fisheries Subsidies Agreement Technical support, capacity building, transparency, and other institutional mechanisms for developing nations are all covered by Article 6 of the Fisheries Subsidies Agreement. Article 6 refers to LDCs receiving special and differential treatment, and expressly exempts LDCs from the prohibition imposed by Article 5. Further, Article 6 discusses the transition time after the LDC has graduated from the acquired status. It is identical to Article 5.4(a), and the time period has not yet been determined because it is subject to WTO member country discussions and negotiations. The only variation from Article 5.4(a) is that the transition period will begin when such LDCs graduate. In addition, Article 6 also requires member nations to use caution when addressing or reporting any issue involving LDCs, as well as when exploring solutions to the problem at hand, taking into account the special status of LDCs. At the same time, this makes LDC members responsible for ensuring that any exemptions from Article 5.1 and subsidies do not contribute to overfishing or overcapacity. Article 5.1.1 qualifies Article 5.1, which mentions permitted subsidies by member countries, provided they are used to maintain stocks and promote bio diversity. LDCs and other developing nations are likewise exempt from the prohibition in Article 3.1 of the Fisheries Subsidies Agreement. It exempts subsidies provided or retained by developing country Members, including LDCs for low-income, resource-poor, or livelihood fishing or fishing-related activities inside 12 nautical miles of the baselines for a period of two years. Conclusion The Fisheries Subsidies Agreement has been the first multilateral trade agreement to be finalized under the WTO, and it has been the top priority of LDCs. It will provide an opportunity to reach a global agreement at last to restrict harmful fisheries subsidies. Moreover, it will also provide an opportunity for the WTO to develop trust in multilateralism as the new disciplines on fisheries subsidies are the only multilateral trade negotiations currently ongoing. The next ministerial meeting should focus on the areas where the parties have reached an agreement, and the issues of subsidies leading to IUUs and overcapacity can be carefully explored. However, the clauses of Article 6 and Article 3, exempting countries from responsibilities are problematic because many major subsidies providers disagree on such broad exemptions. In this regard, India has expressed dissatisfaction with this proposal and has requested a balanced policy space for all concerns, fearing that negotiating along these lines would delink fisheries from other discussions. 5/19/2022 Russian Law to Seize Control Over Assets of Hosted Foreign Investors: A Violation of International LawRead Now This is an editorial piece authored by Tejas Hinder, Final Year Student of Law, BA LL.B., (Hons.) at National Law Institute University, Bhopal.
Introduction The Russian parliament is presently on discourse over a draft bill that, if passed, would empower the government to seize the assets of foreign businesses that have been doing business in the nation since February 24, 2022. The draft legislation on imposing external administration would allow the federal tax authority to petition the Moscow Arbitration (Commercial) Court to appoint the Russian state development corporation, VEB.RF, or another interdepartmental commission as a 'external administrator' for a firm. Businesses to potentially face an impact include those where the controlling person or owner of at least 25% of the company is a foreigner from an ‘unfriendly’ country, categorised on the basis of geo-political ties of the Russian Federation, such as the United Kingdom or the United States. To be placed under external management, the enterprise must be critical to maintaining economic stability or safeguarding the rights and legitimate interests of Russian residents in Russia. It is not the physical invasion of property that characterizes nationalizations or expropriations that has assumed importance, but the erosion of rights associated with ownership by State interferences. So, methods have been developed to address this issue.[1] In addition to the ECT, which has been quoted above, treaties in force that deal with the protection of investments typically address also indirect expropriations or measures having equivalent effect.[2] This article gives an in-depth insight into potential violations of international law that can arise if the statute comes into legal effect. It does so by covering grounds of the use of force under Article 2(4) of the UN Charter, justifiability as a counter measure, and violation of customary international law on investments, and brings to light an obligation for restitution on the Russian government should such seizures of assets happen. Violation of Article 2(4) of the UN Charter Article 2(4) of the Charter requires that states to refrain in their international relations, from the threat or use of force, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the Purposes of the United Nations.” It endows the prohibition of force as a general and authoritative principle.[3] The substantial majority of legal scholars attribute the norm contained in Article 2(4) a jus cogens character.[4]The same has also been regarded as jus cogens by the International Court of Justice and the International Law Commission.[5] The principle enshrined under Article 2(4) of the Charter therefore has the character of an international customary law. The principle of non-intervention, as one of the fundamental norms of international law, is embodied in the Charter of the United Nations and firmly established in state practice and customary international law. Among early treaty formulations of the principle was Article 15(8) of the Covenant of the League of Nations and the Montevideo Convention on Rights and Duties of States of 1933, which prohibited interference with the freedom, the sovereignty or other internal affairs, or the processes of the Governments of other nations, together with the Additional Protocol on Non-Intervention of 1936. The principle enshrines sovereign equality of all nations. The prohibition of use of force covers within its ambit the blocking of investments by Russia which violated the sovereignty and integrity of the countries where the investors are incorporated by infringing its right to trade and other rights associated to its sovereign character. Justifiability as a countermeasure Countermeasures that violate fundamental human rights obligations[6] and involve the use or threat of force[7] are unlawful.[8] Countermeasures must be necessary “to safeguard an essential interest against a grave and imminent peril”[9] and proportionate, including quantitatively equivalent,[10] in response to an internationally wrongful act. The actions of the countries where the investors are incorporated does not tantamount to an internationally wrongful act, the ordinance introduced by Russia against these actions involve the use of force and do not satisfy the test of necessity or proportionality and hence is not a justified countermeasure. According to Article 25(1) ILC Articles, necessity may not be invoked by a state as a ground precluding the wrongfulness of an act not in conformity with an international obligation of that state unless the act is the only way for the state to safeguard an essential interest against a grave and imminent peril; and does not seriously impair an essential interest of the state or states towards which the obligation exists, or of the international community as a whole. In order to establish an essential interest against a grave and imminent peril, Russia in the first instance has to demonstrate a grave and imminent character of this peril.[11] Afterwards Russia has to establish the essential character of its interest against such a peril.[12] None of that can be effectively done by Russia. Economic objectives or irrationality in allocation of budget funds can qualify as a "grave peril", required by Article 25(1) ILC Articles. According to the tribunal in LG&E v. Argentina, in order for the peril to qualify as grave and imminent “the threat […] must be extremely grave”.[13] The tribunal in CMS v. Argentina held that even “[a] severe crisis cannot necessarily be equated with a situation of total collapse”,[14] required by Article 25(1) ILC Articles. The economic losses faced by Russia cannot be equated to a completely collapse of its economy. The threat is not grave or eminent and hence an essential interest of Russia cannot be drawn out for it to justify its action as a justified countermeasure. Violation of Customary International Law relating to investments Under customary international law, foreign investors are entitled to a certain level of treatment, and any treatment which falls short of this level, gives rise to responsibility on the part of the State. The international minimum standard includes fair and equitable treatment, full protection and security and compensation against expropriation. Violation of fair and equitable treatment obligation Russia owed a duty to accord fair and equitable treatment to the countries where the investors are incorporated, an element of this duty is the prohibition of arbitrary behaviour towards the investor state. As provided in the ELSI v. Italy, arbitrariness is “a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of judicial propriety”.[15] To meet the obligation to accord fair and equitable treatment, a host state shall ensure that “all relevant legal requirements for the purpose of initiating, completing and successfully operating investments made, or intended to be made,…should be capable of being readily known to all affected investors…There should be no doubt or uncertainty in such matters.”[16] The ordinance issued by Russia expropriating assets and suspending pending contractual payments came as a shock to the affected investors and the same was not made readily known to the investors beforehand. Such uncertainties in the legislations regarding the successful operation of investments in Russia state indicates arbitrary behaviour on part of Russia and hence a violation of the fair and equitable principle. The right to due process being one of the core rights of an investor, to grant the same, the host state should ensure that there is an operative mechanism of challenging governmental decisions which affect the investor. While the countries where the investors are incorporated had a possibility to resort to the state courts of Ruth, it would be futile. Given that the requirements for granting a license are confidential, the countries where the investors are incorporated would be unable to make a case before the national courts of Ruth, challenging the denial to grant a license to its investment. Hence, under the circumstances, the countries where the investors are incorporated in fact had no access to due process. The key element of the fair and equitable treatment standard is the requirement to protect the legitimate expectations of investors.[17] This requirement includes the obligation of the host state to maintain a stable legal framework for the investors,[18] which means that it should act consistently, without ambiguity, and transparently.[19] Moreover, the host state is under an obligation to meet the expectations of the investors, which arose out of direct or indirect representations or promises made by the host state.[20] The countries where the investors are incorporated established its investment in Russia state upon availing the requisite permits and licenses. The legitimate expectations can be based on the legal orders of the host state and/or explicit and implicit assurances,[21] which among other things includes licenses.[22] Hence, the countries where the investors are incorporated was entitled to expect the host state to act without arbitrarily revoking any pre-existing decisions or permits issued by the state that were relied upon by the investor to assume its commitments as well as to plan and launch its commercial and business activities.[23] Russia however failed to provide a transparent, stable legal framework and hence failed to protect the legitimate expectations of the countries where the investors are incorporated. In CME v. Czech Republic the host state had reversed its previous position on the legal situation of the holder of the license, which caused damage to the investor. The tribunal came to a conclusion that “the [Government] breached its obligation of fair and equitable treatment by evisceration of the arrangements in reliance upon with the foreign investor was induced to invest.”[24] In this instance, investors relied on the legal situation in Russia state at the time of its establishment in the state. This legal situation would completely reversed by way of the law introduced by Russia and hence cause severe damage. Impairment of conduct To make a plea of necessity the conduct in question must not seriously impair an essential interest of the state towards which the obligation exists.[25] Investors derive benefits from the investment made in the countries where the investors are incorporated state, this in turn was the basis on which the countries where the investors are incorporated state was operating. Hence, it formed a regular conduct wherein the parties were acting in accordance with the international investment law. However, the illegal ordinance promulgated by Russia state impaired the usual course of practice which had been recognised as legitimate, hence seriously impairing the conduct of the countries where the investors are incorporated. Arousal of the restitution obligation under Customary International Law A case of judicial restitution This being said, according to James Crawford, “[c]ustomary law or treaty may create obligations to which is annexed a power to demand specific restitution”.[26] As it is established by the International Court of Justice in the Chorzów Factory case, not only restitution may be claimed, but it is a primary remedy for a breach of an international obligation.[27] The ITLOS in M/V Saiga (No 2) cited the Chorzów Factory as an authority and confirmed the primacy of restitution as a remedy for a breach of an international obligation.33 Russia violated international treaty obligations as well as customary international law on investment thereby the COUNTRIES WHERE THE INVESTORS ARE INCORPORATED is entitled to restitution as a primary remedy against the breach of international obligations on part of Russia. Article 12 ILC Draft Articles frames customary international law on detecting a breach of an international obligation. As it follows from Article 12 ILC Draft Articles, certain obligations may be breached by the mere passage of incompatible legislation. As it further follows from Article 35 ILC Draft Articles, in this case the aggrieved party is entitled to claim restitution, which shall take the form of "the reversal of some juridical act".34 Such a juridical restitution is not alien to practice of international tribunals and was granted, for instance, in the Case of Radio East35, where the tribunal ordered Egypt to revoke a decree violating the 1932 Madrid International Telecommunications Convention. The illegal ordinance promulgated by Russia is conflicting with the international obligations it owed to the countries where the investors are incorporated. Hence, the claim for restitution is available to the countries where the investors are incorporated under customary international law, it being a reversal of the illegal action on part of the countries where the investors are incorporated by a passage of an inconsistent legislation. Non-exclusion of Judicial restitution under customary international law In customary international law restitution can be excluded only in two cases, namely, when restitution is materially impossible and when it is disproportionate (Article 35 (a) and (b) ILC Articles). Nevertheless, Russia cannot effectively invoke these defences. The typical cases when restitution is materially impossible are destruction of the object in question[28] or serious effect of restitution on the position of third parties.[29] Restitution may not be found impossible merely due to legal or practical difficulties.[30] The object in question, being the investment made by investors in Russia state would neither be destroyed nor would there be a serious effect of restitution on any third party. Further, the restitution claimed by the countries where the investors are incorporated is proportionate to the adverse effects of the illegal expropriation of assets on the countries where the investors are incorporated. Hence, restitution cannot be excluded in this regard. [1]UNCTAD Series on issues in international investment agreements, Taking of Property 20 (2000). [2]UNCTAD Series on issues in international investment agreements, Taking of Property 41 (2000). [3]Louis Henkin, ‘Use of Force: Law and US Policy’ in Right v. Might, International Law and the Use of Force (Council on Foreign Relations Press 1991) 38. [4]Malcolm N Shaw, International Law (Grotius, 1991) 686; Antonio Cassese, International Law in a Divided World (OUP 1994)141; Edip Celik, Milletlerarasti Hukuk (International Law) (Filiz Kitabevi 1982) 410. [5]Nicaragua v. United States, para. 183; Democratic Republic of the Congo v. Uganda, para. 148; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (Sep. op. Elaraby), p. 254; Oil Platforms (Islamic Republic of Iran v. United States of America) (Dis. op. Elaraby), p. 291; Oil Platforms (Islamic Republic of Iran v. United States of America) (Sep. op. Kooijmans), para. 46; Yearbook of ILC (1996-II), p. 247. [6]Article 17, The International Covenant on Civil and Political Rights (1966). [7] Article 2(4), The Charter of The United Nations (1945). [8]Article 50(1)(a-b), The Articles on the Responsibility of States for Internationally Wrongful Acts (2001). [9]Id., Article 25(1)(a); Thomas Franck, On Proportionality of Countermeasures in International Law, 102 AJIL 715, 741 (2008). [10]Enzo Cannizzaro, The Role of Proportionality in the Law of International Countermeasures, 2001 EJIL 889, 906-07. [11]Supra Note 8, Article 25(1). [12]Id. [13]LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, ¶253. [14]CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, ¶354 [15]Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 I.C.J. 15, ¶128. [16]Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, ¶76. [17]Supra Note 14; Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/01, ¶114. [18]Supra Note 13, ¶124; Supra Note 14, ¶¶160-161. [19]Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, ¶154. [20]Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, ¶333. [21]Id. [22]Metalpar S.A. and Buen Aire S.A. v. The Argentine Republic, ICSID Case No. ARB/03/5, ¶185. [23]Supra Note 19. [24]CME Czech Republic BV v. Czech Republic, Final award and separate opinion, (2006) 9 ICSID Rep 264, ¶611. [25]Supra Note 18 [26]James Crawford, Brownlie’s Principles of Public International Law, Oxford University Press (2019), p.569. [27]Factory at Chorzów, Germany v. Poland, Jurisdiction, Judgment, PCIJ Series A No 9, ICGJ 247 (PCIJ 1927), ¶48; New Zealand v. France, (1990) 82 ILR 500, ¶114; LaGrand, Germany v. United States, ICJ GL No 104, ¶128(7); Congo, The Democratic Republic of the v. Belgium, [2002] ICJ Rep 3, ¶¶72-77, 78(3); Avena and Other Mexican Nationals, Mexico v. United States, [2004] ICJ Rep 12, a ¶¶128-143. [28]Supra Note 8, Article 35 [29]Id. [30]Id. This article is authored by Muskaan Garg, Penultimate Year Student of Law, BBA LL.B., (Hons.), Jindal Global Law School.
I. Introduction In pursuit of peaceful dispute resolution between States, one of the long-standing solutions espoused has been the International Court of Justice’s (ICJ) adjudication in the realm of international law. Customary International Law (CIL) is enshrined under Article 38(1)(b) of the ICJ Statute which empowers the ICJ to apply international custom as ‘evidence of a general practice accepted as law.’ ICJ is bound to abide by this application of international custom and cannot disregard the vital role of general practice (see Nicaragua v. United States of America). Its elusiveness has led to several attempts by the ICJ to define CIL and explore its facets within international law. In ICJ’s interpretation of Article 38, its function is to ‘decide’ and ‘bring an end to the disputes before it’ (see Bosnia and Herzegovina v. Serbia and Montenegro). Article 59 of the ICJ Statute further highlights ICJ’s subsidiary role by declaring its judgments to be non-binding except between the parties and in respect of that case. However, this is all good in theory. Over the years, the uncertainty attached with CIL has legitimised ICJ’s unprecedented degree of influence over its determination. As a result, scholars like Pellet have expressed concern towards the dwindling legitimacy of CIL when ICJ ‘asserts’ its existence instead of ‘proving’ it.[1] Advancing Cassese’s observation of absence of a central law-making body having compulsory jurisdiction in the international legal system[2], it is argued that in exercise of ICJ’s authority in identifying the customary rules and defining their scope and content, it has accidentally or perhaps deliberately gone beyond its judicial role into the realm of law creation. This piece seeks to evaluate this contention through the analysis of three ICJ decisions, Fisheries (United Kingdom v. Norway) (1951) case, Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) and Legal Consequences of the Separation of the Chagos Archipelago from Mauritius Advisory Opinion (2019). It is argued that ICJ asserts law at its own convenience and is moving away from a strict application of the requirements of state practice and opinio juris as laid down in North Sea Continental Shelf Cases (Germany v. Denmark and the Netherlands). II. Case analysis A. Anglo-Norwegian-Fisheries-Case (1951) The ICJ sided with Norway’s position that the method of delimitation of fisheries zone under the Royal Norwegian Decree of July 12, 1935, was not in contravention of international law. To support its conclusions, the Court relied on a general practice among several states which follow Norway’s straight-base lines method along with a lack of a state practice confirming the 10-mile rule to be an existing rule under CIL. Since it was an early day judgement, there was no reference made to opinio juris. To reach a conclusion, ICJ introduced the persistent objector rule suggesting that where a state acts contrary to an established customary practice and other states concede, it is to be treated as not bound by that original rule.[3] In applying this rule to Norway’s situation, the ICJ in true essence ‘recognised’ the existence of CIL. However, Cassese[4] and Thirlway[5] criticise this rule since it lacks the support of existing state practice. It is argued that by exempting Norway from following the CIL, the ICJ inched towards creating an exceptional rule under CIL. This attempt did manifest law creation tendencies. However, it has not been pleaded for many times since Fisheries and the Asylum (Colombia v. Peru) case as now there is a widespread agreement that the persistent objector rule only applies when a CIL rule is emerging. Therefore, it appears-that-scholars-and-jurists-have-forgiven-ICJ’s-attempt to create CIL since international law was in its nascent stages. The majority judge, Judge Alvarez, in his individual opinion expressly pointed towards the creation of general principles under Article 38 when the same cannot be formed from customs and conventions. That is, “if no principles exist for covering a given question, they must be created to conform to those conditions.” Although, the judgement largely demonstrates an interpretation of CIL, Judge Alvarez’s proposition indicates a possibility of a positive construction of CIL by the Court. It is contentious to approve of this proposition as any CIL rule that the ICJ invents using this understanding would be a legal fiction at best as the Court would not have perceived it but rather assumed it. However, according to Shaw, the situation of non-liquet as anticipated by Judge Alvarez where no applicable law is found is a rarity and general principles are almost always present for closing this gap.[6] Nonetheless, creation of new rules every time the Court is unable to answer a question would undermine the aim of international law – integration of community interests. B. Nuclear-Weapons-Advisory-Opinion (1996) The ICJ concluded that no CIL or conventional law universally prohibits the threat of use of nuclear weapons, but they can be used in case of armed conflict. On reading in fine print, it appears as if there was some opinio juris regarding illegality of threat or use of nuclear weapons but certainly no corresponding state practice. However, the ICJ found none. To reach this conclusion, the Court examined the presence of an opinio juris through analysis of the General Assembly (GA) resolutions. However, in Court’s opinion, the nature of consent under the relevant resolutions still fell short of establishing the existence of an opinio juris on illegality of use of such weapons. To this end, it is contended that the Court seems to place their trust in the GA resolution to come up with an opinio juris. Some have even gone to the extent to argue that in trying to find a source of CIL in GA resolutions, ICJ uses the shield of opinio juris to often create custom.[7] This challenge has been ongoing since Nicaragua v. United States of America wherein the Court similarly referred to the attitude of states towards some GA resolutions which enabled it to extract an opinio juris. However, in the Nuclear Weapons AO, the ICJ seems to have adopted a restrictive approach as it acknowledges-that-resolutions-do-not-make-law-by-themselves-and focused on their normative value in providing evidence for establishing an opinio juris. Although the Court acknowledged the non-binding nature of the resolutions, it failed to provide any other instance or source to establish opinio juris in the matter. The very nature of CIL is dependent on behavioural patterns i.e., customs and not on whether they are legal as is their impression under resolutions. A heavy reliance on GA resolutions is problematic as the United Nations is ultimately a political entity whereby the-reasons-to-support-or-oppose-a-stance-at-GA usually have underlying political motivations which can at no cost transpire into judicial pronouncements as the basis of a decision.[8] The use of such consensus may be beneficial in reaching a further nuanced opinio juris but cannot be the basis of it. Therefore, voting for a resolution cannot be held as conclusive evidence for opinio juris. While-ICJ-may-seem-to-reconsider-its-position-under the Nicaragua judgement, the wording of the Nuclear Weapons A.O. still suggests ICJ’s reliance on resolutions to grant itself power to create custom. In response to the contention that answering a question posed by the GA would require the ICJ to legislate because of absence of a relevant rule in corpus juris, the Court reiterated its task to not only state the existing law but also hinted on expanding its scope and note its general trend in application of the law. Thus, ICJ also seems to normalise the assertion of custom under the garb of application of law. Scholars believe that CIL is moving away from the bottom-up approach of relying on state practice as in the case of Nicaragua to a top-down model of proclaiming the law rather than deducing it.[9] Hence, ICJ seems to depart from the traditional sense of custom and prefer this approach. C. Chagos-Island-Advisory-Opinion (2019) The Court had to ascertain if self-determination was a CIL rule when Mauritius acceded to independence in 1968. A timeline had to be determined for the crystallization of self-determination as a CIL rule. Here the Court again relied on a series of GA resolutions by ascribing it a normative value to only ‘assert’ that self-determination was already a CIL rule at that time. Marko Milanovic is precisely wary of this assertion as neither state practice nor opinio juris was established to reach the conclusion. Milanovic further made a remark that, “[it is] just good plain assertion, as the Court is so often wont [one's customary behaviour] to do.” Thereby, supporting the contention that the Court is often accustomed to assert CIL rules rather than proving them. On-the-subject-of-normative-character-of-resolutions,-the-Court relied on the Nuclear Weapons A.O. to maintain that with regards to the right to self-determination as a CIL norm, the impugned resolution 1514 (XV) has a declaratory character, despite it only being a formal recommendation. In the Court’s view the normative character of the resolution is evident from its wording that, “[a]ll peoples have the right to self-determination”. On comparing the application of the normative value of resolutions in both Chagos A.O. and Nuclear Weapons A.O., it seems it is up to the Court to ascertain the weight attached to the consensus under a resolution. For instance, in Nuclear Weapons A.O. since some states had abstentions to GA resolutions declaring the use of nuclear weapons to be in direct violation of the UN Charter and that the use should be prohibited in certain formulations, the Court saw this as a clear sign of deep concern but still held that these resolutions fell short of establishing an opinio juris on the illegality of nuclear weapons. However, in case of Chagos A.O. also some states had abstentions, but the Court on trusting the wording of the resolution decided to assume its normative character as sufficient to establish state consent. In so far as the application of the law by ICJ is concerned, although the Court claims that it reserves discretion in the application of a CIL rule, the Court often uses this discretion to emphasis importance of certain rules and interest. For example, in paragraph 180 of Chagos A.O., the Court suggests that there exists a binding obligation on all states to cooperate with the UN in completing Mauritius’ decolonisation since self-determination is an obligation erga omnes. Here, the Court seems to use the shield of erga omnes to elevate the existing right to self-determination to the higher level of peremptory norms. According to Eggett and Thin such an elevation often renders the legal meaning of a CIL rule completely obscure. Therefore, the Court-in-defining-the-scope-of-a-rule-sometimes-oversteps-its-customary-basis-and-invents- something-else-which-might-lead-to-unintended-repercussions. III. Final evaluation and the road ahead From North Sea Continental Shelf cases (1969) to Chagos A.O. (2019) through Nicaragua (1986) and Nuclear Weapons A.O. (1996), the Court seems to have inconsistently used its own recipe for identifying CIL, i.e., the twin requirement of opinio juris and state practice. From deriving-opinio-juris-as-a-psychological-element-requiring-higher-standard of proof than showing continuous practice as evidence to deriving its evidentiary value from GA resolutions in Nicaragua and Chagos is a big leap. Moreover, in Chagos no state practice was also relied upon as against one in Fisheries. Therefore, if even after 70 years this inconsistency persists-it-is-safe-to modestly conclude-that-ICJ-asserts-law-at-convenience-on-a-case-to-case basis. Precisely, like in Nuclear Weapons A.O., a sense of convenient behaviour is witnessed in ICJ’s indecisiveness to admit a blanket prohibition of nuclear weapons. Despite referring to multiple treaties on human rights affirming the illegality of nuclear weapons and emphasising indispensability of humanitarian principles, the Court was conveniently unable to find an opinio juris on illegality amongst the states. Moreover, the Court very conveniently relied on the nuclear weapon-possessing states themselves regarding its non-proliferation where the very survival of a State would be at stake (see paragraph 62). The Court specifically observed that the Security Council had no objections to nuclear weapon states making treaty reservation which allowed them to use nuclear weapons in certain circumstances. Further, from the limited analysis in this paper, it is observed that ICJ in finding CIL is keener to rely on GA resolutions in advisory opinions, like in both Nuclear Weapons and Chagos. Reasons-for-it-may-be-rooted-in-the-liberty-that-comes-with-operating in an advisory capacity vis-à-vis while in a judicial capacity of solving disputes between two parties with higher burden.[10] Some even argue that ICJ often reviews and evaluate the resolutions of the political organs through its advisory jurisdiction.[11] Therefore, there might be a hint of politics involved in placing reliance on resolutions. Afterall, they are part of one ecosystem, the UN. Keeping the political malafides debate aside, it is contended that the very nature of CIL is to be blamed for ICJ’s behaviour of accidently creating custom than merely determining it. Jörg Kammerhofer underlines a paradox that, “norms are created in part by acts which are precisely an application of the resultant norm.” [12] The underlying notion is that the act which makes the law is the act to which the law is applied. In the application of the norm, ICJ often tends to sidestep the consideration of all the acts which had led to the formation of that norm. The circling paradox makes it difficult for the Court to separate the assertion and application of the law by using the acts. Ultimately, under CIL, the subject’s behavioural patterns should matter. The continuing trend of extracting opinio juris from resolutions and asserting CIL without valid legal basis will not only compromise CIL’s legitimacy but also ICJ’s own judicial character.[13] In the realm of CIL, irrespective of the non-binding nature of ICJ’s judgements, they are viewed as pronouncements underlining the patterns of conduct that have to be complied with. Therefore, ICJ cannot act independently and its actions are always at the mercy of state preferences since it operates in a state-centric system.[14] Thus, it can be argued that ICJ derives its effectiveness from States’ willingness to accede to its judgements. ICJ’s legitimacy-is-at-stake-when-it-disregards-state-practice-as-then it-seems to be operating without the participation of the States through state consent. Eventually, States will opt-out of ICJ’s jurisdiction, leaving it further powerless. IV. Conclusion Spanning over seventy years, the cases provide a panoramic view of the CIL landscape evoking ICJ’s indispensable influence over CIL. The inconsistency in the basis of ICJ decisions solidifies the belief that ICJ asserts custom at its own convenience and that its interpretation is overly flexible. Whether-it-is-the-adoption-of-the-persistent-objector-rule in the Fisheries case to break the deadlock or reference to GA resolutions for extracting opinio juris. ICJ’s behaviour uncovers its ability to create new rules and that CIL will always have a possibility of being created. Judicial activism must be restricted to unique or otherwise non-liquet situations. Like Judge Alvarez, scholars still maintain that law assertion can occur in circumstances where existing principles fail to provide an answer. However, further research is still solicited. At the end of the day, ICJ’s interpretation must not reduce custom to a fiction and retain its sanctity - in the spirit of international law and comity. [1]A. Pellet, 'Shaping The Future Of International Law: The Role Of The World Court In Law Making', Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff Publishers 2011) [2] A. Cassese, International Law (OUP, 2005) 194-5 [3] Malcolm Shaw, International Law (7th edn, Cambridge University Press 2014) 67 [4] A. Cassese, International Law (New York: Oxford University Press 2005) [5] Hugh Thirlway, ‘The Sources of International Law’ International Law by Malcolm D. Evans (New York: OUP, 2010) 95-121 <https://iilj.org/wp-content/uploads/2016/08/Thirlway-The-Sources-of-International-Law-pp.-95-108-2010.pdf> [6]Shaw (n 3) [7] Loretta Chan, ‘The Dominance of the International Court of Justice in the Creation of Customary International Law’ (2016) 6 Southampton Student Law Review 44 <https://cdn.southampton.ac.uk/assets/imported/transforms/content-block/UsefulDownloads_Download/DF52912B4261406EAAA781C8CEA4DE1A/SSLR%20Vol%206%20Issue%201.pdf> [8]Rosalyn Higgins, ‘The Development of International Law By The Political Organs Of The United Nations’ (1965) 59 Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969) [9] B. Simma and A. L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999) 93 AJIL 302, 307 [10] Mark Angehr, 'The International Court of Justice's Advisory Jurisdiction and the Review of Security Council and General Assembly Resolutions' (2009) 103 Nw U L Rev 1007 [11]Ibid. [12]Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’ (2004) 15 (3) EJIL <http://ejil.org/pdfs/15/3/360.pdf > [13] W. Michael Reisman, ‘Judge Shigeru Oda: A Tribute to an International Treasure’ (2003) 16 Lei-den J. Int’l L. 57, 63 [14] T. Ginsburg, ‘Bounded Discretion in International Judicial Law Making’(2004) 45 Va. J. Int'l L. 631 5/18/2022 What Significance Do the ICJ’s Provisional Measures Bear in the Ukraine v. Russia Dispute ?Read NowThis article is authored by Ahan Gadkari, Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission.
PART-I 1. Introduction On March 16, 2022, the International Court of Justice in The Hague (ICJ) issued an order on provisional measures in the ongoing case between Ukraine and Russia (Case Concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, Request for the Indication of Provisional Measures, Ukraine vs. Russia, Order of 16 March 2022, hereafter referred to as the "ruling"). The court ordered Russia to stop all hostilities and ensure that conventional Russian forces, and other military groups under Russian command and control, do not engage in continued military action on Ukrainian territory. The provisional measures have effect until the fighting is stopped or until the dispute is settled in a final judgment. Thirteen judges voted in favor of the ruling, and two dissented. Both Ukraine and Russia have ratified Genocide Convention. Ukraine stated that Russia is responsible for two separate violations of the convention. Ukraine first stated that Russia's seemingly untrue allegations that Ukraine had committed genocide against ethnic Russians in Donetsk and Luhansk in themselves constituted a breach of Russia's obligations under the Convention. Ukraine's second allegation was that Russia's ongoing military invasion constitutes a breach of obligations under the Convention (para. 2). The court concluded that Ukraine's claims are plausible. The court further observed that there is a real danger of irreparable damage to Ukraine's rights under the Genocide Convention if Russian hostilities are not stopped immediately (para. 60). The order does not mean that the ICJ has made a final decision on whether the court has jurisdiction over the case. Nor does the decision mean that the court has ruled on whether Russia has violated the Genocide Convention. The court has only taken a preliminary (preliminary) position on these issues. At this stage of the case, it was sufficient for the court to establish that it may have jurisdiction over the case and that the plaintiff's substantive allegations are plausible, without having to consider in detail whether it is likely that Ukraine's allegations will succeed. The court concluded that the conditions for imposing a temporary injunction on Russia with an order to stop the fighting have been met (para. 63 and 64). 2. ICJ's Competence and Jurisdiction The ICJ is a generalist court under Article 7 of the UN Charter. It has jurisdiction to hear all disputes under international law which a State appeals to the Court of Justice, provided that the Court has jurisdiction, in accordance with Articles 34, 35 and 36 of ICJ Statute. Necessary jurisdiction may result either from a state having accepted the jurisdiction of the court on a general basis or in specific areas of law, or that the state has bound itself through a so-called binding clause / provision in a specific treaty, as described in Article 36 of the statutes. The conflict between Russia and Ukraine is in fact about Russia's obvious violation of Article 2(4) of the UN Charter. It follows from the provision that the "use of force" against the "territorial integrity or political independence" of other states is prohibited. According to the ICJ, this is a customary law jus cogens rule; that is, a lex superior norm, a rule that takes precedence over other obligations under international law (see Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), ICJ Reports (1986), 14 , paragraph 190), and also Article 103 of the UN Charter.) An unprovoked war of aggression falls within the core area of the provision. Armed aggression can only exceptionally be used in the territory of other states. In this case, there is no evidence that Russia can invoke the exceptions of self-defense under Article 51 of the UN Charterre also seems to be broad agreement among the vast majority of the world's states that Russia's use of force constitutes a gross violation of the prohibition on power. In General Assembly resolution of 2 March (ES-11/1) entitled "Aggression against Ukraine", Russia's use of force was condemned in strong terms and classified as unlawful use of force under Article 2 (4), see section 20 of the resolution. 141 of the 193 UN member states voted in favour of the resolution. Unlike a Security Council resolution, a General Assembly resolution is not legally binding. It is merely "advisory" per Article 11(1) of the UN Charter. Due to Russia 's position as a veto power in the UN Security Council, and Russia's use of this veto power, the Security Council has not been able to adopt a resolution that Russian use of force is illegal and order that the fighting be ceased. If Russia had not exercised its right of veto, the Security Council would have had the authority to make such a decision per Article 39 and 40 of the UN Charter. At the time Ukraine filed a case against Russia in the ICJ, there was therefore no legal order from an authoritative body ordering Russia to stop the fighting. The ICJ has the competence to deal with questions of law jus ad bellum, the use of force between states, and to order a state to stop illegal fighting, provided that the court has jurisdiction in the case. Like the United States and China, however, Russia has not bound itself to the ICJ’s compulsory jurisdiction over disputes concerning the question of use of force. Ukraine could therefore not sue Russia alleging breach of Article 2(4) of the UN Charter. In order for the ICJ to have the competence to order provisional measures ordering the cessation of Russian hostilities, Ukraine had to choose a different approach to the matter. Ukraine stated that Russia had violated the Genocide Convention by making false allegations of genocide, and used these false allegations as a basis for the invasion of Ukraine. As both Russia and Ukraine have given jurisdiction to the ICJ in disputes concerning the interpretation of the Genocide Convention and the implementation of treaty obligations under the Convention, the Court will have jurisdiction over such a dispute per Article IX of the Convention. The questions that the court had to decide at this stage of the case were whether the conditions were met for being able to issue provisional measures ordering Russia to stop all hostilities. 3. Prima facie jurisdiction The jurisdiction of the court to decide on an interim injunction in an ongoing case before the court follows from Article 41 of the ICJ Statutes. An interim injunction may involve an order for an action or an order to stop an ongoing action. The provision states that the court may adopt a provisional measure if "the circumstances so require" and the court considers it necessary with such an order to protect the rights of one of the parties until the case is finally decided. The detailed conditions for this have been developed through the court's own practice; it must be possible to establish prima facie (preliminary) jurisdiction and establish that there is a potential violation(s) of one of the parties' rights. Furthermore, it must be possible to establish an adequate causal link between the alleged violation of rights and the claim for ordering provisional measures. Finally, it must be possible to prove that there is a real danger of irreparable damage to rights covered by the dispute, and that the risk of damage can be remedied by the provisional measure requested. It follows from Article IX of the Genocide Convention that the parties to the Convention have committed themselves to resolving disputes concerning the interpretation, implementation and observance of the Convention for the ICJ. Since both Ukraine and Russia have ratified the Convention, jurisdiction ratione personae , party jurisdiction, has been fulfilled in the case. To establish prima facie jurisdiction ratione materia, that is, preliminary jurisdiction over the subject matter of the dispute, the court must determine that there is a certain degree of probability that there is a dispute between the parties over which the court has jurisdiction. A dispute arises when there is a real disagreement about either fact or law in connection with the dispute issue. It was not surprising that the ICJ accepted Ukraine's allegation that there is a possible dispute between the parties covered by the Genocide Convention. The ICJ concluded that there is a potential disagreement, both about the fact - whether Ukraine has committed acts that qualify for a genocide, and about the law - whether the use of force is a legal countermeasure against a state that commits genocide. Although Russia has accused Ukraine of genocide, the court found that there is no evidence that Russia has explicitly accused Ukraine of violating its legal obligations under the Genocide Convention. However, the Court emphasized that it is not a requirement that the respondent must have explicitly mentioned a specific legal obligation prior to the action, in order for the ICJ to be able to establish that there is a potential dispute over the fulfilment of obligations covered by the dispute. It was therefore sufficient that the possible disagreement was in reality about the fulfilment of obligations under the Genocide Convention. PART-II 4. Plausible breaches of Russia's Obligations Under the Genocide Convention and the Causal Link Between the Alleged Breaches of Duty and the Demand for an end to Russian Hostilities Following the establishment of prima facie jurisdiction, the ICJ had to decide whether Ukraine's allegations were plausible. In other words, the court had to consider whether it is plausible that Russia's apparently undocumented allegations of genocide against Russians and whether the ongoing invasion of Ukraine constitutes a breach of Russian obligations under the Genocide Convention. The Genocide Convention imposes - in essence - the convention states three things: 1) It obliges the parties to the convention to do everything practically possible to prevent genocide from taking place in their own territory, 2) to make genocide punishable under national law and 3) to do its utmost to prosecute people responsible for planning and / or carrying out genocide, either nationally or by having the person (s) transferred to a competent international tribunal, per Articles I, IV, V and VI of the Convention. The Convention is silent on the consequences of false or erroneous accusations of genocide. A duty not to spread false accusations of genocide must therefore be interpreted in other obligations. For this to happen, the court must make a purposeful and comprehensive interpretation of one or more of the articles of the Convention. Provisions of the Treaty shall be construed in accordance with its "ordinary meaning", in accordance with Article 31(1) of the 1969 Vienna Convention. In other words, the interpretation must be objective and in line with a general understanding of the language. However, treaty provisions cannot be interpreted in isolation without the law enforcer taking into account the purpose and intent of the provision - and the treaty. Individual rules must always be interpreted in the light of the Treaty's preface and read in the context of other rules in the Treaty per Article 31(2). The ICJ has previously made a liberal interpretation of the wording of the articles of the Genocide Convention. In the judgment on the case concerning the application of the Genocide Convention between Serbia and Bosnia, the ICJ stated that a State party that commits genocide, either through a clear and adopted policy or by having effective control over the criminal group, violates its obligations under the Genocide Convention (para. 234). Such an obligation cannot be read directly from the articles of the Genocide Convention. However, the Court interpreted the duty to prevent and prosecute genocide under the Genocide Convention Article I extensively, so that the perpetrator of genocide violates the obligation to prevent and prosecute genocide. By interpreting these obligations in the light of the purpose of the Convention, the court concluded that a prohibition on "carrying out" genocidal acts is embedded in the rule. An erga omnes obligation, a universally binding obligation, not to commit genocide already follows from international customary law. The interpretation of the ICJ that customary international law for State responsibility for genocide and the genocide convention complement each other, therefore makes perfect sense. It would also lead to absurd results if States responsible for carrying out genocidal acts were to escape State responsibility under the convention, while States that fail to prosecute genocide offenders violate the convention. It cannot be ruled out that Ukraine will be heard with its allegation that a prohibition on false accusations of genocide can be interpreted as an obligation under Article I of the Genocide Convention. But compared to the question of state responsibility for carrying out genocide, such an obligation is further from the wording of the terms "duty to prevent and prosecute" genocide in Article I of the Convention. and to "create" a new obligation to which the parties to the treaty have not committed themselves. The latter is outside the jurisdiction of the court. It will probably take a long time for Ukraine to be heard in a final sentencing judgment with its allegation that undocumented accusations of genocide qualify as a breach of the obligations of the Genocide Convention. Nor does the Convention say anything about the possibilities of using force to prevent or stop an ongoing genocide. However, the Convention states that states must resolve disputes under the Convention for the ICJ - by peaceful means per Article IX andArticle 2 (3) of the UN Charter, and that States otherwise have the opportunity to refer matters to the UN Security Council, per Article VIII. The last provision is a reference to the rules below Chapter 7 of the UN Charter, which allows the Security Council to authorize the use of force on the territory of states if necessary to ensure international peace and security, per Article 39, 41 and 42 of the UN Charter. The Security Council's practice shows that even internal conditions, such as an ongoing genocide taking place in the territory of a single state, may qualify for a threat to international peace and security that may trigger a Chapter 7 mandate from the Security Council, with the consequence that the territorial state's right to not to be subjected to armed force in one's own territory is disregarded (see Security Council resolutions S / RES / 918 and S / RES / 955 (1994)). The use of force against another state, which is not authorized in a Security Council resolution or is done in self-defense, is therefore illegal. This applies even if the reason for the use of force is the desire to prevent or stop a genocide. There are currently only a few States that argue that it is permissible to legally carry out a humanitarian intervention without a Security Council mandate. The status of Russia's invasion being illegal, therefore, few doubt, with the exception of Russia itself and a few States (only four states voted against General Assembly resolution ES-11/1, while 35 states abstained). At the same time, it is doubtful whether Russia's use of force is an issue that falls within the scope of the Genocide Convention. Questions about the rightful use of force jus ad bellum is, as mentioned, a question the ICJ cannot take a position on, since Russia has not accepted the ICJ’s compulsory jurisdiction on this. It is therefore not a given that Ukraine's claim that a military invasion constitutes a breach of obligations under the Convention will stand up in a possible main hearing. However, because the case is at a preparatory stage, it was not necessary for the court to rule on whether Ukraine's allegations that Russia has violated the Genocide Convention will prevail. It was sufficient for the court to rule that there is no evidence that Ukraine has committed genocide in Donetsk and Luhansk, and that it is (in any case) doubtful whether the convention allows a state to use force to prevent or stop a genocide. Against this background, the Court concluded that it cannot be ruled out that Ukraine has a right not to be subjected to a military invasion of Russia (para. 59 and 60). Once the Court had opened up the possibility that Russia's actions would affect Ukraine's rights, it was not surprising that the Court concluded that the provisional measures demanded by Ukraine would be an adequate measure to protect those rights (para. 62, 63 and 64). 5. Risk of Irreparable Damage to Ukraine's Rights Under the Genocide Convention if Hostilities are not Stopped The last thing the court had to decide was whether the condition of real and immediate danger of irreparable damage to relevant rights was met. More specifically, the court had to conclude that Ukraine's rights under the Genocide Convention were in immediate danger of being irreparably damaged. Basically, it is a separate condition that its urgency to adopt an interim injunction. As a rule, the condition that it is urgent to have provisional measures adopted is treated together with the danger condition, as one condition. In its ruling, the court thoroughly reviewed the damage that the Russian invasion has inflicted on the Ukrainian civilian population and Ukrainian society (para. 75 and 76). These damages are thoroughly documented by credible and objective sources. The court ruled that there was a real and immediate risk that Ukraine's plausible rights under the Genocide Convention could be violated as a result of the Russian invasion (para. 77). Previous rulings by the ICJ indicate that when a dispute raises issues that in some way concern the danger to life and health, the court will go to great lengths to order adequate provisional measures, even if the right of individuals to life and health lies on the periphery of what the case is legally involved. In the Preah Vihar ruling from 2011, for example, the court concluded that the danger of loss of life and health of Cambodian citizens entailed an element of danger of harm to Cambodia's territorial rights, and Thailand was therefore ordered to withdraw all military personnel from Cambodian territory, The case concerned a dispute over border matters. It was therefore not surprising that the ICJ also this time went to great lengths to temporarily stop the hostilities in Ukraine, even though the rights of the Ukrainian people are not directly covered by the dispute in the case. Although Ukraine has prevailed in the first round of the case, it is far from certain that Ukraine will prevail when the dispute is finally decided during a possible main hearing. As explained in this article, such a result requires that the court must move to the limit of what it has jurisdiction and jurisdiction in the present case. 6. Concluding Remarks The ICJ's ruling is the third decision by an international court, where Russia has received a court order in connection with the hostilities in Ukraine. The European Court of Human Rights (ECtHR) ruled on March 1, 2022, stating that Russian fighting is likely to pose an immediate risk of irreparable damage to rights protected under Article 2 of the European Convention on Human Rights (ECHR) - the right to life, by that acts of war committed by Russian soldiers (and other units under Russian command and control) do not comply with the obligation to provide unimpeded access to civilian population and humanitarian aid. The ECtHR ordered Russia to act in accordance with the international law of war. But this ruling is more like water off a duck’s back as all states have a duty to act in accordance with the international law of war, regardless of a binding order from a court and Russia seems indifferent to this obligation. The ECtHR issued a new ruling on 1 April, 2022, in which the provisional measures of March 1 were continued. In the latest ruling, the ECtHR ordered new provisional measures that Russia must ensure safe evacuation routes for the civilian population. In addition, Russia was required to ensure the population's access to necessary food, medicine and health care. Russia was also required to ensure the free movement of humanitarian personnel. These, too, are obligations that Russia is bound by under international law of war, regardless of whether this is confirmed in a ruling. Russia has now been expelled from the Council of Europe. However, the State is still bound by the ECtHR’s two rulings, as the Russian hostilities were carried out while Russia was still a member State per Article 58(2) of the ECHR. The ICJ's decision is the first and so far only decision by an international dispute resolution body that directly orders Russia to stop all hostilities. Russia is bound by the decision per Article 94(1) of the UN Charter. Russia has already made it clear that it will not respect the ruling. There is no international coercive force under the UN Charter that can carry out physical measures vis-à-vis Russia, to pressure the state to stop the invasion of Ukraine. International law is based on the premise that the states themselves carry out legal orders from dispute resolution bodies to which they are bound. When Russia one day hopefully stops the fighting in Ukraine, it will hardly be due to a legal order to do so. The current circumstances show once again that the question of the use of force between States can hardly be resolved in an international dispute resolution body, at least where the court lacks jurisdiction over jus ad bellum issues. The Court's provisional measures may nevertheless have an important symbolic function in the initial phase of an armed conflict when atrocities against the civilian population are committed. Through provisional measures from the ICJ, a State that is subject to abuse of power can receive recognition that there is a violation of the State's rights under international law, from a respected and (mainly) objective international body. An order for provisional measures can also help shape the political narrative in favour of the state that is attacked. There is broad agreement that a war of aggression, a clear and significant violation of Article 2 (4) of the UN Charter, constitutes a leadership crime under customary international law. Because Russia has not ratified the statutes of the International Criminal Court in The Hague (ICC), the Rome Statute , Putin will hardly be able to be prosecuted and convicted of aggression in the ICC. Ukraine has admittedly accepted the ICC's jurisdiction in connection with war crimes that take place on Ukrainian territory, but the ICC's jurisdiction over the Ukraine war does not include a potential aggression crime under Article 8 bis of the Rome Statute. Time will tell whether the Russian president, will one day be held responsible for starting an illegal war of aggression. Unless the UN Security Council establishes an ad hoc tribunal based on Article 29, 39 and 41 of the UN Charter - modeled on the Nuremberg Tribunal and the Rwanda and Yugoslav courts - with jurisdiction over aggression crimes, it will be demanding to have the President of Russia prosecuted and convicted for starting a war of aggression. As long as Russia has veto power in the Security Council, such a solution today seems practically impossible. But one possibility that remains is for individual states to prosecute Putin under national law, based on the doctrine of universal jurisdiction for international crimes. Due to procedural restrictions (criminal immunity for heads of state), Putin can be arrested on the day he resigns as president. Today, it seems far-fetched to think that in a couple of decades, the world community may wake up to the news that Vladimir Putin has been arrested. But there were probably not many who during World War II had envisioned an international criminal settlement after the war. And from recent times, the example of the arrest of Rwandan war criminal Felicien Kabuga by French police on May 16, 2020 came as a big surprise to the international community, and was something few had imagined a couple of years ago. Perhaps history will once again show that international law and cooperation can win over autocracies, dictatorships and despots. 4/18/2022 Fragmentation of International Economic Law: The Interpretation of WTO Agreements by Swiss Domestic CourtsRead NowThis article is authored by Ahan Gadkari, a Fourth Year Student of Law at Jindal Global Law School and Ankit Malhotra, Research Assistant at 3 Verulam Buildings.
Introduction Presently, the World Trade Organisation (WTO) is hearing an increasing number of disputes involving a range of areas and therefore going beyond traditional trade law concerns; see, for example, the trade and environment debate. This development is often seen as an incursion of international legislation into national sovereignty. For this paper, Switzerland's political debates recognized that this system ensures market access and non-discrimination for Swiss enterprises operating overseas. The growing importance of this debate has been paralleled in recent years by an increasing number of cases involving WTO legislation being heard by Swiss adjudicatory organizations. However, contrasted to other areas of international economic agreements, such as Switzerland's bilateral economic integration accords with the European Union, the absolute number of instances remains relatively low. General Agreement on Tariffs and Trades (GATT) was only relevant in three cases before the Swiss Supreme Court in the 1960s and 1970s (p. 164). However, the direct effect still reverberates in an express disagreement between domestic and international norms. Simply put, a private individual may directly dispute the domestic law provision by relying on the international law provision. However, a direct effect may be expressly mandated or prohibited by an international agreement or local regulation. Generally, it is left to the Court to determine whether a regulation has direct effect and/ or should be applied in a particular situation and/ or deny direct implementation of international accords (p. 305ff). Because international treaties are, by legislation, made part of the domestic system, they offer courts and administration unique functions. Courts have, time and again, expressed their apprehension vis-à-vis treaty interpretation and application (See here, here and here). In Switzerland, it is customary to hold that a treaty norm must be justiciable, which means that its substance must be explicit and unambiguous enough to serve as the foundation for a judgment in a particular instance (p. 121ff). Furthermore, it is common to consider that such a provision must include specific rights or responsibilities, relevant to the individual, that are intended to instruct the authorities or the judge to carry out the norm (p. 29ff). In Switzerland, the issue of whether a particular international treaty regulation has a direct effect is inextricably linked to the question of whether a person may apply it. This article undertakes a judicial examination of the domestic court’s interpretation of WTO Legislation. To assist in this study, the authors will study the Swiss Federal Supreme Court’s jurisprudence to underscore its trajectory and hesitance vis-à-vis WTO rules as foundations of their judgment. As a result of this undertaking, it will be apparent that only upon prima facie complicity of the domestic system with WTO, interpretation, and application of WTO is considered. While complicity and consistency are important across sections of domestic governance, it is in stark contrast to practice in other nations (See here and here). Although courts appear to be gradually accepting the concept of multi-layered governance (at least in certain states), it is still preferable in many instances to interpret domestic sources by existing obligations rather than giving priority to international obligations over domestic obligations (See here, here and here). The Role of Courts in International Treaty Application Like the United States of America, Swiss Courts refer to 'self-executing nature' to highlight the absorption of an international treaty that requires domestic application via a separate statute to become effective. The European Convention on Human Rights and some sections of the United Nations Convention on the Rights of the Child and other UN Human Rights Treaties are primarily regarded as self-executing. While the International Covenant on Civil and Political Rights is widely viewed as being directly applicable. However, Courts have been more hesitant to grant direct application to the economic and social rights outlined in the International Covenant on Economic, Social, and Cultural Rights. Such provisions are enshrined in Article 95 Letter of the Federal Law on the Federal Supreme Court which speaks about the possibilities for persons to rely on self-executing provisions of international treaties before the Swiss Federal Supreme Court. Generally, Swiss courts acknowledge treaty existence and influence on the domestic legal system. However, Swiss courts have been particularly lenient in recognizing human rights' direct impact (See here and here). The concepts of direct application or effect also apply to international law derived from trade agreements such as the GATT 1947 and other components of the WTO legal framework. The Swiss Federal Council noted that the WTO Agreements’ direct and unhindered impact. This, however, must be studied on a case-to-case basis. The Swiss Courts have expressed hesitance to give direct effect to international treaty standards liberalizing international commerce. For instance, the European Free Trade Area (EFTA) Convention and the bilateral Free Trade Agreement between Switzerland and the European Community, Swiss Courts have been criticized for frequently denying direct effect to treaty norms intended to liberalize trade. This reluctance germinates from the Courts' fear of interfering with the country's rule-making authors and thus directly impacts foreign policy and investment. Cottier understands this as a mercantilist and protectionist stance. GATT 1994 Applicability in Switzerland and Federal Supreme Court Practice Post-1995, there were hopes that the WTO's strengthened legal framework and the introduction of the dispute resolution mechanism would influence Switzerland's approach towards GATT and WTO standards. The Swiss Federal Supreme Court, in its first ruling on the GATT since 1995 (the unpublished decision of 9 June 1998 re Kingston-Bier), addressed a claim filed by importers of beer that had been infused with alcohol since 1993. As a result of higher alcohol levels in the beer, the tax was higher than if the beer was produced domestically. The Commission looked into whether the amount paid complied with the GATT's Article III:2 national treatment (NT) provision. Determining that the tax was unfair (taxing imports differently than domestic production), the Appeals Commission found it to be illegal. But, due to the lack of precedent, this violation had no legal consequences. The Swiss Federal Supreme Court affirmed the verdict and its 1986 judgement (Decision not officially published but reprinted in 1998 ASA 69, 366 ff). Also, the Swiss Federal Supreme Court mentioned the WTO Agreement and stated that it was not required to decide on the new Agreement's implementation and since it was not (yet) relevant. Additionally, it should be highlighted that the statute determined to be incompatible with the GATT in this instance had been amended by the authorities to prevent future incompatibilities. The Swiss Federal Supreme Court addressed the distribution of a tariff quota in the Swiss Federal Ministry of Economic Affairs v Appeals Commission for the Swiss Federal Ministry of Economic Affairs and Vilaclara Jr & Co. The importer reasoned that it was not permitted under the GATT to require importers to give a bank guarantee when applying for tariff quota imports. The Court determined that this was a matter of domestic procedural law since the WTO Agreement did not include any regulation governing this issue (para. 419). The complainant was an importer of dried meat in an unpublished judgment in re A SA v Federal Office for Agriculture and Appeals Commission for the Swiss Federal Ministry of Economic Affairs (Bresaola) (Judgment 2A.496/1996 of 14/7/1997 E. 4b). Following the Uruguay Round, specific tariff quotas for such dried meat were auctioned. According to the complainant, this auctioning mechanism was incompatible with Article 4:2 of the Agriculture Agreement and Article 3 of the Import Licensing Agreement. The Court recognized that the WTO Agreement was designed to provide legal clarity, particularly concerning GATT issues that were now addressed in more specific accords, such as the one on import licensing. Simultaneously, the Court emphasized that many WTO rules like, GATT 1947, were ambiguous. Furthermore, Parties had substantial discretion over the precise measures to be implemented, a circumstance that might jeopardize the direct execution (subsequent impact) of these Articles by domestic courts. However, all of these factors were irrelevant to the case since the Court determined that the actions were fully compliant with the cited provisions. This also highlights the beginning of WTO legal framework interpretation under Swiss law. In other subsequent decisions, the Court left open the issue of whether a WTO provision is directly applicable and ruled that, in any event, the domestic law was consistent with international norms. This was also considered as a sign that public perception of the WTO has shifted in comparison to the former GATT (p. 105). The Panel and Appellate Body Reports' Influence Apart from the issue of local courts applying the WTO Agreements, the effect of case law created under the Dispute Settlement Understanding (DSU) is of primary concern. Given the nature of the Agreements, it is widely accepted that the Reports generated by dispute resolution panels, particularly the Appellate Body, play a critical role in guiding the accurate interpretation of the covered agreements (See here and here). In its GATT Message, the Swiss Federal Council stated that it considered Panel and Appellate Body reports to be binding only on Contracting Parties (p. 418). Switzerland has never been a party to a WTO Dispute Resolution Procedure. As a result, no Dispute Settlement Body (DSB) Report has ever been sent directly to Switzerland as a Party, and no court has ever been required to define the consequences of such a decision in Swiss law. In Re Preferential Treatment of Domestic Newspapers, the Swiss Appeals Commission for Infrastructure and the Environment declared the Swiss Postal Services' preferential rates of newspapers delivery as unconstitutional. However, it was argued that preferential treatment violated Article III GATT prohibition on discrimination, the Commission refrained from explicitly applying Article III GATT but reiterated that Article 15 of the Postal Act must be construed in a manner compatible with Switzerland's international responsibilities, namely Article III GATT (Consideration 13.3). The Commission concluded that preferential treatment violated Article III: 4 GATT and could not be justified under the exemption in Article III: 8 letters b GATT. Concerning the proper interpretation of this latter paragraph, the Commission relied extensively on the WTO Appellate Body's view in its report WT/DS31/AB/R dated 30/6/1997 Canada – Certain Measures Concerning Periodicals (Consideration 13.4.2). The Commission regarded the WTO Report as an authoritative source for determining the meaning of WTO requirements. While the Commission's interpretation of the report is debatable, it is noteworthy to mention that the Commission regarded the WTO Report as an authoritative source for determining the meaning of WTO requirements and therefore indirectly for interpreting domestic legislation in a treaty-consistent manner. Tracing further case law, the plaintiffs stated in their judgment BGE 131 III 76 of 4 October 2004 re X A/S v Y AG that the authorities' action was discriminatory under Article 3.1 TRIPs and cited to a WTO Panel Decision of 7 November 1989 United States – section 337 of the Tariff Act of 1930 (BISD 36S/345). This dispute involved the diminished availability of a forum according to Article III:4 GATT. The Court erroneously referred to a 'GATT Panel of 1998' but took no opinion on the Panel Report's relevance to the matter at hand, since it regarded domestic legislation to be fully compliant with the TRIPs Agreement in light of the Paris Convention's reference to exceptions (Consideration 2). Local and specialized authorities also seem to be more likely to cite GATT and WTO Dispute Settlement Reports; however, this often appears to rely on whether the claimant does so or if the law clerks involved are knowledgeable with WTO law. This is especially prevalent in the realm of government contracting. A particularly interesting example is the reference by the Canton of Zurich's Administrative Tribunal to case law relating to processes and production methods (PPMs) under Articles I, III, and XX (b) GATT, in particular, the Tuna/Dolphin and Shrimps/Turtles cases when asked whether Article XXIII: 2 of the GPA permitted authorities to require bidders to provide wood only from sustainable forestry (p. 206). Another example is the reference to the Panel Report Korea – Measures Affecting Government Procurement, WT/DS163R, adopted on 15 June 2000, in a 28 September 2001 judgment by the Federal Appeals Commission for Public Procurement CRM 7/01 re Skyguide. The Swiss authorities were required to determine whether a public body was controlled by the state and therefore subject to the GPA's rules or were sufficiently autonomous to be regarded as a distinct organization. The authorities attempted to use the same standard as the WTO Panel to interpret the extent of the implementing laws by the GPA. It also referred to a second Panel Report created under the GATT 1947, namely the United States – Sonar Mapping System, Government Procurement Agreement, DS1/R of 23 April 1992, which was never implemented. Although this second report was never formally approved by the Parties, the Federal Appeals Commission for Public Procurement determined that it was significant in developing the present Article I: 3 GPA and should therefore be utilized to interpret it correctly (Consideration 3c) ee.). Conclusion While the Swiss Federal Supreme Court and other judicial and administrative organizations have been criticized for denying GATT 1947 direct effect. There has also been a failure of the Swiss courts to address the direct consequences of the GATT 1994 and subsequent WTO accords. In particular, the GATT's trade liberalization articles have not been accepted by the Supreme Court to have a direct impact. Nonetheless, it can be observed that the Swiss courts, particularly the administrative bodies in the first instance, have been inventive in their interpretation of domestic law to achieve compliance with or adherence to international responsibilities. As a result, WTO law has had a significant indirect influence on the Swiss legal system. Notably, WTO jurisprudence, that is, Panel and Appellate Body findings, even if they are not implemented are qualified to implement these treaties and case laws as relevant. Without providing a definitive response about the direct influence of WTO law on Swiss jurisprudence, the issue of consistent interpretation of Swiss law with WTO law ensures legal consistency and has beneficial consequences for the creation of domestic law. In areas of international trade regulations, there are extensive and intricate models for establishing an effective legal system. WTO rules are critical to domestic law and will not be disregarded as domestic regulations. Rather, they will provide specific legal language to aid in interpreting broad and open-textured local law. The Swiss experience exemplifies this critical connection between international law and domestic norms. The Swiss Courts' consistent interpretation of domestic laws in light of WTO legislation pulls domestic and international economic law closer together. This article is authored by Tanish Gupta and Shubham Gandhi, IIIrd and IVth Year B.A. LL.B. (Hons.) students of Dharmashastra National Law University, Jabalpur, respectively.
With the Covid-19 declared a Public Health Emergency of International Concern (“PHEIC”), allegations of violation of provisions of International Health Regulation (“IHR”) 2005, particularly Article 6, are being labeled against China. The United States is the front-runner, with few other countries from the European Union wanting to take strong legal action against China for the mayhap. Historically, states have been reluctant to report timely to the World Health Organisation (“WHO”). In 2014, there had been a delay in notifying WHO of the Ebola outbreak, resulting in PHEIC. The Covid-19 situation seems to be the first time the International Community aspires to hold the defaulting State legally responsible. Though such cases have never been brought before the International Court of Justice (“ICJ”), the principal judicial organ of the United Nations, the question to ponder is, can the states in effect, conveniently and without major legal impediments bring such cases before ICJ? Not delving into the issue of liability of China, the authors, in this article, seeks to examine the jurisdictional basis laid down under Article 75 of the Constitution of WHO (hereinafter "Article 75"), and highlight the intricacies of Article 75, which in essence, restricts States to reach out to ICJ for the adjudication. The Compromissory Clause Consent of the states to submit to the jurisdiction is considered the sine qua non for the ICJ to exercise its jurisdiction. The consent need not necessarily be given by recognizing the court's jurisdiction as compulsory ipso facto or by a special agreement and may be derived from a treaty or convention to which the concerned states are parties. Accordingly, as per Article 36(1) of the Statue of ICJ, the court can assume jurisdiction on the matter specifically provided for in the treaty. Article 75 enunciates the compromissory clause for submission of the matter to ICJ. It prescribes two preconditions for seisin of the court: that the question or dispute should be concerned with "the interpretation or application" of the WHO Constitution and that it is "not settled by negotiation or by the Health Assembly." Concerning Interpretation or Application Failure on the part of the State to inform WHO, of an event that may become a public health emergency of international concern, in a timely manner essentially amounts to a violation of Article 6 and Article 7 of IHR 2005. A state seeking to bring the other State before ICJ for its failure to timely inform WHO would invariably invoke jurisdiction of ICJ under Article 75. For the ICJ to exercise jurisdiction, the dispute must be concerned with the interpretation or application of the treaty whose compromissory clause is being invoked. Indeed, the court has accepted that Article 75 provides for ICJ's jurisdiction; however, a legal conundrum, though often overlooked, confronts the parties. Can a dispute on violation of provisions of IHR 2005 be treated as a dispute concerning the interpretation or application of the Constitution of WHO? A state may conveniently argue that the World Health Assembly ("WHA") has adopted IHR 2005 in light of its power under Article 21(a) of the Constitution of WHO, and as enunciated in Article 22 of the Constitution, the regulation binds member states unless they have expressly opted out of such regulation. Therefore, through Articles 21 and 22 of the Constitution of WHO, one may argue that a dispute concerning IHR 2005, is in essence, a dispute concerning the Constitution of WHO. However, exploring the provision more closely, Article 21 is concerned with "authority to adopt regulations" and Article 22 with the process of "come(ing) into force" of regulation for all members. None of the provisions, in reality, is about the content, interpretation, or application of IHR 2005. Hence, the authors view that the Constitution of WHO is only concerned with the adoption and coming into force of IHR 2005, and the matter concerning interpretation and application of IHR 2005 cannot amount to the interpretation and application of the Constitution WHO. Interpretation of "Or"- Alternative or Cumulative The second precondition stipulated in Article 75 for reference of the matter to ICJ is that it "is not settled by negotiation or by the Health Assembly." The provision is construed as negative, meaning there should be a failed attempt to resolve the dispute by negotiation and WHA. Prima facie, the use of the term "or" may look to give a disjunctive interpretation, i.e., that the dispute must first be referred to either negotiation or WHA. However, the word "or" cannot ipso facto be contrasted with the word "and” as both in ordinary and legal parlance, used in alternative and cumulative sense. The courts have to, at times, construe “or” as meaning “and”. In the case of South China Sea Arbitration, the arbitral tribunal opined that the term “or” in Article 121(3) of UNCLOS prescribes a cumulative requirement. A deeper analysis has been undertaken to understand the true meaning of “or” in Article 75. In the Armed Activities on the Territory of the Congo case, a similar objection regarding the interpretation of Article 75 was raised before the ICJ, to which many authors believe that the court settled the matter regarding interpretation. However, in reality, the court ruled that it cannot assume jurisdiction based on Article 75 since DRC failed to display a question or dispute concerning the interpretation or application of the WHO Constitution. Even assuming the existence of such a dispute, the court opined that the other precondition, “namely that it (DRC) attempted to settle the question or dispute by negotiation with Rwanda or that the World Health Assembly had been unable to settle it,” is not satisfied. The court in substance never delved into the contention of the meaning or interpretation of the work “or” as used in the provision, and therefore, the decision cannot be relied upon for our present discussion. ● Negotiation and Settlement by WHA are not alternatives In another case, Ukraine v. Russian Federation (“Ukrain case”), ICJ was called upon to interpret the meaning of “or” as used in Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Notingly, the provision is worded identically as Article 75. The ICJ, in this case, construed “or” to mean alternatives since both the methods seek to achieve an agreed solution to a dispute, and interpreting “or” as “and” would mean renegotiation. Article 11 to 13 of CERD prescribes the procedure to resolve a dispute, according to which a CERD Committee will be formed to facilitate an “amicable resolution,” which is again open to the parties to accept or reject. Thus, settlement of the dispute by the procedure provided for in CERD is, in essence, settlement of the dispute by an agreement which is the same as negotiation, making both alternatives of each other. Given the reasoning of ICJ in the Ukraine case, it is unlikely that Article 75 will be interpreted in the same way. WHO is a specialized body of the United Nations having its governing structure & procedural rules. As prescribed in Article 10 of the Constitution, the WHA is composed of delegates of member states and is the supreme decision-making body of WHO. If, in future, a dispute is brought before WHA, vide Rule 70 of the Rules of Procedure of World Health Assembly, it has the power to suspend the voting privileges and services of a member” and may request ICJ for an advisory opinion. Unlike the CERD Committee, the WHA has powers to make decisions binding on member states. The dispute settlement by the WHA is not based on the agreement of the concerned parties and, therefore, cannot be considered an alternative to negotiation. ● The Successive Steps Article 75 is worded in negative. Instead of “or, “and” could not be used as it would read as “which is not settled by negotiation and by the Health Assembly shall be referred to the ICJ,” further meaning that the dispute has to be solved by both negotiation and the WHA, and even if one process succeeds but the other fails, it would be open to the parties to refer to ICJ. Such an insertion of “and” would leave the provision grammatically incorrect and absurd. Therefore, “or” in Article 75 has to be understood in a cumulative sense. Also clearly enunciated by the United Nations Handbook on the Peaceful Settlement of Disputes between States, Article 75, thus, prescribes three successive steps: first, an attempt must be made to resolve the dispute by negotiation; second, if negotiation fails, the dispute must be referred to the WHA; after that, if the dispute is still not resolved, it shall be referred to ICJ. Conclusion The interpretation of Article 75 cannot be done by adopting a literal rule, and notwithstanding the desired outcome, the court has to adopt a legal approach to interpret the provision. From the discussion in the article and as clearly laid down in the Handbook of the United Nations, it is clear that “or” is used in a cumulative sense and should be interpreted as “and”. Any argument to draw inspiration from the Ukraine case cannot sustain as the settlement process of the two bodies are fundamentally different. The authors started this article with a question: Can a case against China as to Covid 19 outbreak ever reach the doors of ICJ? The answer is negative. Article 75 is so intrinsically worded that to reach ICJ, the State must exhaust all the available settlement mechanisms, which invariably leads to the state avoiding the Apex Judicial body in International law. This article is authored by Aviral Kumar Mishra, a Fourth Year Student of B.A.LL.B (Hons.) at Rajiv Gandhi National University of Law (RGNUL), Patiala.
Introduction International law was developed to promote world peace and egalitarianism between nation states. These are the set of regulations that govern the relationships between sovereign independent nations. However, since the development of the International law, scholars and academicians are focusing only on the giant economic powers; a class approach to International Law focuses our attention on social groups and classes; these social groups have historically shaped the International law. Also, this approach does not implement rejection of the significant approaches to International law, including but not limited to conservative, liberal, feminist, or post-modern approaches. These can complement each other better to comprehend the structure and process of CIL. Building upon the Marxist division of classes, the development of transnational capitalist class [TCC] and its influence on Customary International Law [CIL] is poignant. We must look at the microscopic view of the erstwhile proclaimed egalitarian international law that forced us to examine the unspoken norms governing international law. The Class approach draws our attention to look into the struggles of transnational oppressed class [TOC] and transnational middle class [TMC] in the public sphere. Emerging global social formation on the lines of economic prowess has also sadly influenced the contours of international law. Catastrophic influence of economic power on International law As per the layman definition, International law consists of rules and regulations governing the relations between the nation-states. But in the public sphere, which is highly influenced by the economic status of the country, Can CIL be oblivious to that? Right from the veto power of the 5 permanent nations in UNSC to the appointment of the judges in the ICJ, the omnipresence of the TCC is evident. Not just in the ICJ, which is at the helm of the international law arena, but also this capitalist mentality is evident in the working and governance of international organizations. From WHO’s unexpected silence on the giant economic power like China, and its role in the covid pandemic to the world bank’s alleged dismantling of doing business data in order to favor China, shows us the ground-level reality of the application of grundnorm of international law. These standalone events forced us to look into the prevalence of capitalism in International law in a much more constructive manner. On one hand, CIL claims to be the egalitarian set of regulations governing the nation states while on the other, the application is quite different. In a class approach to International law, we are looking at the global struggles of TOC which valorizes concrete struggle for democracy and global justice. The class approach to international law helps us to look into the struggles of the marginalized social groups, which are often tormented by economic giants. Class approach draws our attention towards the struggles of Tibetan people in China or Balochistanis in Pakistan. The idea of class approach to International law also forced us to look into the motive and the working of the international institutions like IMF. IMF, which was established after the Bretton woods Conference, aimed at reducing economic inequality, however, in application instead of giving voting rights on the basis of member states population, it gave rights on the basis of financial contribution. This paradox shows us the influence of TCC in the transnational public sphere and how it governs, directly and indirectly, all the contours of international law. In the modern world, which rests on the bedrock of capitalism, there is a paradigm shift in the capital-labor relations from the Marxist era to this technology era. It's majorly due to the sub-contracting and outsourcing of work by the transnational corporate sector. The increasing role of immigrant workers in the world economy adds another dimension to it. Forget about sovereign independent nations; now the corporate giants are also taking advantage of the capitalist attitude governing the customary international law. The corporate giants like Facebook’s denial of following intermediary guidelines in a third world country like India, which they are following in economic powers like the US, is testament to the fact that they are aware there will be no international hue and cry for their hypocritical behavior. Recently in Afghanistan’s crisis as well, Class approach is quintessential to understand the plights of the civilians. As per the Integrated Food Security Phase Classification (IPC) report, it is estimated that four of the provinces (Daykundi, Faryab, Badakhshan, and Ghor) are already undergoing severe crises & may face large scale famine due to food shortage. A large number of Internally displaced people (IDP) is making things further difficult as the number of such people is closely reaching about a million. In a country which is facing civil war-like situations for over five decades and where over 92% of the population lives on less than 2$ per day, the problem is really alarming and needs immediate humanitarian intervention. Due to the inherent biased characteristics of the international law of only looking into the sovereign independent nations without understanding the plight of the civilians affected is only of the most prominent reason for strong disapproval of international law rules by developed nations. Conclusion The bigger and the most fundamental question is, Whether CIL’s continued reliance on TCC is hampering the notion of world peace, which is the bedrock of the existence of the United Nations? Emancipation from the capitalistic mentality governing the international institutions and organizations is the need of the hour. A class approach helps one focus sharply on the factual state and apprehensions of the TOC in a way that illuminates the limits of international human rights law; it thereby helps to etch and draw attention to the alienation of international law from the fate of the TOC. Within a global class structure, this approach can render us to look into the struggles of TOC and TMC across the globe. Hearing voices from the marginalized social groups across the transnational sphere can bring the CIL in its truest form. This approach can shift the trajectory of international law from a tool in the hands of economic giants to a weapon to protect world peace. 3/5/2022 Same Game, Different Play - Legal Validity of Russia’s Use of Force Against UkraineRead NowThis article is authored by Ahan Gadkari , Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission and Tushar Rajput, Research Intern at the Centre for Trade and Investment Law, Government of India.
On 24th February, the Russian Federation initiated a “special military operation” in Ukraine. This was a transparent violation of the prohibition on the use of force within customary international law and codified within Article 2(4) of the United Nations (UN) Charter. Further, it was also inconsistent with Clause 1 and 2 of the Budapest Memorandum on Security Assurances. The operation went into motion after a speech was delivered by Russian President Vladimir Putin (English Translation: here). The speech provides Russia’s “justification” for using force against Ukraine. From the speech, two significant points can be gathered. First, it is an intervention via invitation (IVI) for collective self-defence under Article 51 of the UN Charter within the so-called “Donetsk People’s Republic” and the “Luhansk People’s Republic.” Second, it is to end a genocide being conducted by the Kyiv regime for six years. The second justification seems to be invoking the responsibility to protect (R2P), a principle that Russia has historically denied. The authors believe that the assertions put forth by the Russian President are like a whiteboard with erroneous written all over it. The purpose of this piece is to provide a legal analysis of the assertions made by the Russian President and depict their inconsistency with international law. Every rule in international law is subject to exceptions. The exceptions to Article 2(4) of the UN Charter of IVI and the controversial R2P have specific criteria that must be fulfilled for them to be invoked. This piece first determines these criteria and then proves that the Russian operation did not fulfil the criteria for these exceptions based on general and customary rules of international law and international jurisprudence. Defence of IVI: IVI and collective self-defence are sometimes seen as two independent exceptions to the prohibition of the use of force, and hence as two distinct reasons for governments to legitimately employ force. However, upon closer examination, the two notions seem to be somewhat similar, since both deal with situations in which a state invites/requests the aid of another state’s military (For a detailed discussion of their interplay: See here, here and here). The rationale of the concept is that the prohibition on the use of force only covers the use of force without consent. In the Nicaragua case, the International Court of Justice (ICJ) solidified IVI as a concept within international law. However, what is of essential significance in the Russian situation is that the ICJ also stated in the same case that the concept of non-intervention would lose its legal efficacy if the intervention were justified only based on a request for help made by an opposition organisation in another State. Indeed, it is difficult to see how the norm of non-intervention would survive in international law if the intervention were permitted at the opposition’s request. This would allow any state to interfere at any time in another State’s internal affairs, whether at the request of the administration or the opposition. The ICJ further stated that such an interpretation is not consistent with the present position of international law (para. 246). Applying the same principle in this case, the legalising effect of consent by “Donetsk People’s Republic” and the “Luhansk People’s Republic” must be questioned. Especially since the situation is such that the consenting government is not legitimate and not recognised by any State other than Russia. Therefore, the Russian defence of IVI has no merits. Defence of R2P: It is essential to reiterate that Russia has historically denied the use of R2P as a valid exception to the prohibition on the use of force. Further, in the speech, the Russian President criticised the use of force by the North Atlantic Treaty Organization (NATO) in various instances. The Russian President stated: “Then came the turn of Iraq, Libya, Syria. The illegitimate use of military force against Libya, the perversion of all decisions of the UN Security Council on the Libyan issue led to the complete destruction of the state, to the emergence of a huge hotbed of international terrorism, to the fact that the country plunged into a humanitarian catastrophe that has not stopped for many years. civil war. The tragedy, which doomed hundreds of thousands, millions of people not only in Libya, but throughout this region, gave rise to a massive migration exodus from North Africa and the Middle East to Europe. A similar fate was prepared for Syria. The fighting of the Western coalition on the territory of this country without the consent of the Syrian government and the sanction of the UN Security Council is nothing but aggression, intervention. However, a special place in this series is occupied, of course, by the invasion of Iraq, also without any legal grounds. As a pretext, they chose reliable information allegedly available to the United States about the presence of weapons of mass destruction in Iraq. As proof of this, publicly, in front of the eyes of the whole world, the US Secretary of State shook some kind of test tube with white powder, assuring everyone that this is the chemical weapon being developed in Iraq. And then it turned out that all this was a hoax, a bluff: there are no chemical weapons in Iraq. Unbelievable, surprising, but the fact remains. There were lies at the highest state level and from the high rostrum of the UN. And as a result: huge casualties, destruction, an incredible surge of terrorism.” Therefore, it seems to be the case that the Russian President is criticising the NATO countries for using R2P as a part of his justification for its use by Russia in this instance. This argument seems extremely hypocritical and lacks consistency. Now coming to the so-called “genocide” against the people of Donetsk and Luhansk by Ukraine and granting statehood. The threshold for remedial secession or on the basis of self-determination in response to an alleged genocide seems to be placed awfully low by Russia (this issue has been discussed in detail here). Especially when Russia asserted that Kosovo did not meet the threshold for ceding from Serbia even after the International Criminal Tribunal for the former Yugoslavia (ICTY) documented the mass atrocities faced by the Kosovar Albanians. The legal qualification of genocide as an act and its social reality has a significant say in the determinant acts in nexus to it. The abilities of domestic courts and the responsibility of states are subject to legal action taken; however, even before dwelling into these concrete steps, implications in international relations are to be addressed. The drumbeat accusations amidst the Russian-Ukraine conflict have highlighted that the Russian President has asserted that there is a ‘genocide’ being conducted by Ukraine, thus circulating a document to the UN Security Council accusing Ukraine of exterminating the civilian population. A nation whose history is rooted in Joseph Stalin’s mass killings in the 1930s should have a better understanding of the nature of the genocidal character and the standards required to conclude the same, which in the present case are absent. The actions of Russia raise questions as to whether a moral right of humanitarian intervention is converted into a right under international law in the event of attempted genocide? And what shall be the objective standards to determine the threshold of damage and the intervention itself? The invocation of genocide represents more than just a shallow casus belli. Genocide entails an aggravated regime of state responsibility. It is a composite crime and consists of acts which are themselves punishable by most existing legislations. The Convention on Preventing and Punishment of the Crime of Genocide (convention) defines acts amounting to genocide and enumerates material offences with necessary mental elements. Extermination, as described in Prosecutor v. Radislav Krstic in the ICTY (para. 492-505), is understood as actions that are subordinated with an intent to destroy or cripple a human group permanently (also see statements made by Sir Hartley Shawcross and Sir David Maxwell Fyfe here.) The convention differentiates between ‘attempt’ and ‘Partial act,’ as has previously been upheld by International Criminal Tribunal for Rwanda in Prosecutor v. Laurent Semanza (para. 316). In the crime of attempted genocide, an entity does not realise its intent, whereas, in a crime of genocide, the acts are attributed to a state to establish the intent. Russia furthers its intervention on the lines of the attempt of genocide, thus shall never meet the standards of intent required to act against Ukraine. Further, the International Law Commission has also held that such an irrational understanding of international standards is inconsistent with international law (page 44). The same in the context of genocide is established through establishing dolus specialis, i.e., a special intent. It neither requires many victims nor even their deaths, rather a systemic deprivation of identity and acts of inhumanity. Since the Russian annexation of Crimea and subsequent conflicts, this burden against Ukraine has not been met. Such proliferation of the convention and existing principles of international law indicates genocide’s politicisation. The claimed atrocities against the people of Donetsk and Luhansk by Ukraine, even if we assume the Russian President’s assertions to be accurate, the acts would qualify as crimes against humanity, the separate codifications – one in international treaty and other in international custom, does not call for the same response from a State and it will still not be construed to be a genocide. Concluding Remarks Thus, the justifications provided by the Russian President of IVI and R2P in this instance do not meet the criteria necessary to be valid exceptions to the prohibition on the use of force. The actions by Russia appear to be founded in the warped Russian assertion of the world being dominated by a hostile west, leaving them to be the sole protectors of the people of Russia and Ukraine. Russia never accepted the right of Kosovo for self-determination or remedial cessation on the basis of genocide. However, Russia wants to use the same argument when it favours its policy. Russia’s invasion of Ukraine is neither justified under IVI or R2P nor does it meet their own interpretation of international law in the past. This is a reminder of the Suez Canal Crisis period, where in one meeting of the UN General Assembly Emergency Special Session (GA ESS), the Soviet Union criticised the intervention of France and Britain in the middle east. Simultaneously, in another UNGA ESS meeting, the Soviet Union supported their intervention into Hungary. Russia’s policy and interpretation of international law have been rooted in hypocrisy. Russia is playing the same game with a different play; the international community is aware of it, the only question which remains is what will they do about it? |
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