Category: Articles

Fitness First? Assessing the Treatment of Fitness to Stand Trial in the Trial of Ieng Thirith – Esther Pearson

Editors Analysis, Articles

Introduction

On 22 August 2015, former ‘first lady’ of the Khmer Rouge, Ieng Thirith, passed away at the age of 83. Ieng was the Minister of Social Action during the period of Democratic Kampuchea and had been indicted before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. However, in September 2012, proceedings against Ieng were stayed after she was found to be unfit to stand trial due to progressive dementia. Following Ieng’s death, residents of Phnom Penh expressed their frustration with the lack of prosecution (for example in the Khmer Times article Khmer Rouge ‘First Lady’ Dies). This post reflects on howthe ECCC’s approach to assessing Ieng’s fitness to stand trial — and the consequences its findings — tried to strike the delicate balance between the imperative to secure a prosecution and need for a fair trial.

Fitness to Stand Trial

In 2004, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the concept of fitness to stand trial in a decision on a motion for the medical examination of the accused in Prosecutor v Pavle Strugar (Decision Re the Defence Motion to Terminate Proceedings). The Trial Chamber considered that for an accused to be fit to stand trial, he or she must:

  • have the capacity to plead;
  • understand the nature of the charges;
  • understand the course of proceedings;
  • understand the details of the evidence;
  • be able to instruct counsel;
  • understand the consequences of the proceedings; and
  • testify.

While the finding of fitness to stand trial is a legal determination made by the court, medical experts are typically employed to assess the condition of the accused and produce a report detailing their findings. Before relying on the expert’s report, the court must evaluate whether the report contains sufficient information as to the sources of the expert’s conclusions, and whether those conclusions were drawn impartially.

The ECCC Rules (rule 32) provide for the medical examination of an accused at the request of a party, in order to determine whether the accused is fit to stand trial. On 21 February 2011, Ieng’s defence team filed a request for an assessment of her fitness to stand trial. Between April and October 2011, an expert geriatrician and four psychiatric experts carried out assessments. They concurred that Ieng’s symptoms were consistent with a diagnosis of dementia and, as a result of her condition, her capacity to understand the course of the proceedings and to instruct counsel was significantly impaired. However, the experts explained that there was a possibility that Ieng’s condition would improve by using a medication for Alzheimer patients and through occupational therapy.

The Trial Chamber acknowledged the gravity of the crimes for which the accused was charged (Decision of Ieng Thirith’s Fitness to Stand Trial). However, it noted that properly qualified medical experts, upon assessment of the accused with credible testing methods, had found that Ieng was unable to meaningfully participate in her defence. Accordingly, the Trial Chamber, having weighed all relevant factors in the balance, found Ieng unfit to stand trial.

Consequences of Unfitness

After declaring Ieng to be unfit to stand trial, it fell upon the Trial Chamber to determine the consequences. Given the experts’ opinions that there was a slight possibility of Ieng’s condition improving through medication and occupational therapy, the national judges imposed orders for mandatory treatment, while the international judges ordered her immediate unconditional release. In this divided situation, the Trial Chamber found that it should adopt the outcome most favourable to the accused, ordering that she be released unconditionally.

Continued Detention with Mandatory Treatment

The decision of the Trial Chamber to release Ieng from detention without condition was promptly appealed by the Co-Prosecutors to the ECCC Supreme Court Chamber (Immediate Appeal against Trial Chamber Decision to Order the Released of Accused Ieng Thirith). The Supreme Court Chamber found that the Trial Chamber was obliged to exhaust all measures available to it to enable the accused to become fit to stand trial, including making orders that the accused undergo treatment while being detained in a hospital or comparable facility (Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith). The Supreme Court Chamber stated that the unconditional release of the accused would forego any effort in the direction of resuming proceedings against the accused, and ‘such an outcome is irreconcilable with the interests of justice from all points of view, including the accused, prosecution, civil parties, and Cambodian society as a whole’ (at [28]). There is a basis for such orders in international criminal law, with precedents in Prosecutor v Jovica Stanisic and Franko Simatovic (Decision on Defence Appeal of the Decision on Future Course of Proceedings) and Prosecutor v Vladimir Kovacevic (Decision on Appeal Against Decision on Referral Under Rule 11bis) before the ICTY. The Supreme Court Chamber ordered the Trial Chamber to institute the recommended treatment and to review Ieng’s condition in six months.

Release from Detention with Judicial Supervision

On 13 September 2012, after experts had again reviewed Ieng’s condition, the Trial Chamber delivered its verdict that Ieng remained unfit to stand trial and ordered that she be released without conditions (Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011). Again, the Co-Prosecutors appealed to the Supreme Court Chamber, submitting that Ieng should be subject to six conditions for release:

  1. That she reside at a specified home address;
  2. That she make herself available for weekly safety checks by authorities or officials appointed by the Trial Chamber;
  3. That she surrender her passport and national identification;
  4. That she not directly or indirectly contact other co-accused (excluding her husband, Ieng Sary);
  5. That she not directly or indirectly contact any witness, expert or victim who is proposed to be heard before the Trial Chamber and not to interfere with the administration of justice; and
  6. That she undergo examination by medical practitioners appointed by the Trial Chamber every six months.

(Immediate Appeal Against Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following the Supreme Court Chamber Decision of 13 December 2011, Case No 002/19-09-2007, 14 September 2012, at [10]).

Conditions that restrict the rights of freedom of movement and privacy, such as those proposed by the Co-Prosecutors, should only be imposed if the conditions are necessary to achieve a protective function, the least intrusive means of achieving that function, and proportionate to the function. In the Supreme Court Chamber’s judgment on the appeal (Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith), it analysed whether each proposed condition met these criteria. It found that, in light of Ieng’s medical condition, it would be unnecessary and disproportionate to retain Ieng’s passport and identification card and to make orders prohibiting her from contacting the other co-accused, witnesses, experts or victims. The Supreme Court Chamber considered the other proposed conditions to be minimally intrusive and necessary to protect the legitimate interests of ensuring Ieng was available to the Court and to monitor her health. By undertaking such an analysis, the Supreme Court Chamber’s ultimate decision balanced the necessity to afford Ieng a fair trial and the interests of society in seeing the alleged perpetrators of the crimes committed in Democratic Kampuchea being brought to justice.

Esther Pearson is an Assistant Editor of the ILA Reporter.

International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas — Dr Alison Pert

Editors Articles

On 20 August 2015, the International Law Association hosted a presentation delivered by Dr Alison Pert (University of Sydney) at the offices of Marque Lawyers in Sydney. The focus of the presentation was China’s recent island-building activities in the South China Sea, but there were also some musings on the effect that these, as well as Russia’s activities in Ukraine, may have on international law and the UN Charter‘s framework for maintaining international peace and security. Below is a summary of Dr Pert’s presentation, prepared by the ILA.

The South China Sea is of great strategic importance, being the shortest route between the Pacific and Indian Oceans; it is a major shipping route and over half the world’s oil tanker traffic passes through it.

China has two types of claims in the South China Sea — one generic and the other specific.  China’s specific claims include the Paracel Islands and Spratly Islands, which are comprised of hundreds of historically uninhabited islands, atolls and reefs.

In its generic claim, China claims ‘sovereignty’ over almost the whole of the South China Sea, based on maps that show an incomplete line of 11 (subsequently 9 and 10) dashes.  China has never explained the precise nature of its generic claim — whether it is meant to be a claim to a vast territorial sea, an exclusive economic zone, or only the land territory within the lines.  China is a party to the United Nations Convention on the Law of the Sea (UNCLOS), and any claim to an exorbitant territorial sea or EEZ would be inconsistent with that treaty.

In its specific claim, China claims a territorial sea of 12 nautical miles, as provided for in UNCLOS, but from straight baselines and in some cases hundreds of kilometres from the coast. This is not permitted by the UNCLOS regime.

Both of China’s claims are vigorously contested by other states in the region, especially the Philippines, Vietnam, Malaysia, Indonesia and Taiwan.  The Philippines is currently challenging the validity of the ‘9-dash’ claim in arbitral proceedings under UNCLOS, and a decision on jurisdiction and admissibility is due before the end of this year.

The basis of Chinas claims has not been explicitly laid out. Drawing from different sources, it appears to include ‘historic title’ to all the islands in the South China Sea and various activities over the centuries, including:

  • the discovery and naming of the islands;
  • boat-building, naval expeditions and voyages;
  • developing knowledge of geographical and natural features;
  • the opening of sea lanes (by marking safe routes on charts);
  • conducting naval patrols as far back as 200–300 CE;
  • conducting scientific surveys, mapping and fishing;
  • placing islands under government administration (1127–1279); and
  • ‘other acts of sovereignty’, such as the installation of facilities for fishing, forecasting and navigation, the rescue of vessels, the issuing of licences to private companies in relation to natural resources and large scale fishing.

These territorial claims may or may not be valid; the activities cited by China are indeed examples of the kinds of governmental acts (‘prescription’) that have successfully established title to territory elsewhere.  But it is necessary that prescription is ‘peaceful’, meaning that it is without objection from competing claims. This may be difficult for China to establish.

What is of more concern is that rather than test those claims in a court or tribunal, China has been constructing large-scale military outposts on many of these islands and reefs.  This might be a breach of international law if any of those islands or reefs are, or are within, another state’s territory.  Even if they are not, China is behaving aggressively to any aircraft or vessels flying over or sailing through the waters of these islands and reefs, demanding that they turn back or go around the claimed Chinese territory.  This too is contrary to international law in most cases.  If a maritime feature is above water at high tide, and is naturally formed, it is an island as defined in UNCLOS and has its own territorial sea and contiguous zone.  If it is also capable of sustaining human habitation or economic life on its own (few of these ‘islands’ are so capable), it is additionally entitled to a 200 nautical mile exclusive economic zone (EEZ) and a 200 nautical mile continental shelf (the creation of artificial islands is not prohibited per se but they generate no maritime zones).  But even warships have the right of innocent passage through the territorial sea, and both shipping and aircraft have freedom of navigation through or over the EEZ.  The concern is that China will use its new military facilities to enforce its claims to sovereignty and impede freedom of navigation.

China is not complying with UNCLOS in at least one other respect.  It has drawn long straight baselines around each group of islands, claiming all the enclosed waters as internal waters and greatly extending the resulting territorial sea, EEZ and continental shelf.  UNCLOS permits this only for archipelagic states (which China is not), and only where the ratio of water to land within those lines is 9:1 or below (and it is not).

The presentation concluded with the suggestion that while paying lip-service to international law, China is violating it in numerous ways.  It was noted, as a point of comparison, that Russia’s activities in Ukraine have clearly violated the international law principle of non-intervention and, at times, the prohibition on the use of force.  As permanent members of the Security Council, China and Russia would of course veto any resolution condemning them.  There is a risk that the rule of (international) law is being seriously undermined, with consequences for the credibility and future of the UN collective security system.

EJIL interview with Hilary Charlesworth

Editors Articles, News

On 9 September 2015, EJIL:Live! published an engaging video interview with leading Australian international lawyer and theorist, Professor Hilary Charlesworth.

Click here to access the video.

Professor Joseph Weiler, Editor-in-Chief of the European Journal of International Law (EJIL), and Charlesworth discuss whether feminist theory in international law has become mainstream. Charlesworth acknowledges that there have been gains in the feminist project since she co-published her seminal article, ‘Feminist Approaches to International Law’ with Christine Chinkin and Shelley Wright in 1991 (see (1991) 85 American Journal of International Law 613). In particular, the language of feminism has entered mainstream institutions. However, Charlesworth provides that, whilst the ‘vocabulary has triumphed … the political agenda behind the ideas hasn’t’.

Charlesworth says that it is problematic that the debate on feminist theory remains ‘in-house’. She suggests that the project would progress if international lawyers who were not feminist theorists were to engage with the issue in respect of their various fields of expertise.

Charlesworth and Weiler also traverse the topic of Australian and New Zealand international lawyers abroad. Weiler jokes that both countries are considered ‘international law powerhouses’ and sometimes people tell him that EJIL should be called the Australian Journal of International Law because it publishes the work of so many Australians.

Charlesworth suggests that a possible explanation is that international law is considered an escape route for Australians, ‘a bridge from our isolated existence into other worlds’. She observes, however, that it is a shame for Australian scholarship that there is such a leakage of talent to Europe and the United States.

The politics of aggression and its susceptibility to regulation by domestic and international criminal law: Is it an act unsuitable for legal regulation generally? — Sophocles Kitharidis

Editors Analysis, Articles

Introduction

Definitional, jurisdictional and regulatory issues surround the crime (and act) of aggression, and its status as a legal act. This post examines whether the determination of an act of aggression — which is made by the United Nations Security Council (UNSC) and is soon to be justiciable before the International Criminal Court (ICC) — is and will always remain a primarily political (rather than legal) act.

The UNSC has the power to declare an event an act of aggression under the UN Charter (Article 39, Chapter VII). The crime of aggression, on the other hand, will fall within the jurisdiction of the ICC under the Rome Statute in 2017, and concerns:

the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

Two competing schools of thought exist when it comes to approaching the complex task of interpreting aggression as an act capable of legal regulation. First, there are states that argue that the ICC should be the only institution with the right to exercise jurisdiction over aggression once the UNSC has determined that an act of aggression has occurred (Matthew Gillett, ‘The Anatomy of an International Crime: Aggression at the International Criminal Court’ (2013) 13 International Criminal Law Review 829). Such an approach indicates that the ICC would be in a position to only make determinations about the ‘leadership elements’ of aggression (see Report of the Special Working Group of the Crime of Aggression Doc. ICC-ASP/6/20/Add.1/Annex II). In contrast, the second school of thought argues that there are a lack of existing legal frameworks that demonstrate the contentions of the UNSC in determining and asserting the ICC’s independence and rights protection framework for the accused; after all the ICC is required to adjudicate all elements of the crime of aggression (Davis Brown, ‘Why the crime of aggression will not reduce the practice of aggression’ (2014) 51 International Politics 648). This line of thought leads to the argument that aggression is not regulated by criminal law.

This post argues that although a limited legal framework exists to regulate the crime of aggression (and within a criminal law context), there remain significant concerns. It first discusses aggression in the context of article 5(2) of the Rome Statute. It also sets out legal and policy arguments for why aggression may be considered a political rather than legal act. Finally, it articulates the ramifications of its proposed legal status.

Aggression and article 5(2)

Article 5(2) of the Rome Statute sets out the conditions under which the ICC can exercise its jurisdiction over acts of aggression:

The court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

In his submission to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Sir Franklin Berman argued that interpretation of this provision may be that

the reference to aggression in article 5 and, in particular, the last sentence of paragraph 2 of that article, which mentioned the Charter, [is] a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred

This position is reiterated by Meron, (Theodor Meron, ‘Defining Aggression for the International Criminal Court’ (2001) 25 Suffolk Transnational Law Review 1), Zimmermann (Andrew Zimmermann, ‘Article 5’, in Otto Triffterer and Kai Ambor (eds), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Articles by Article) and Scheffer, where Scheffer referred to the provision as opaque due to its nature not indicating whether the ICC can prosecute the crime of aggression absent a prior determination by the UNSC that an act of aggression has taken place (Cited in Carrie McDougall, ‘When Law and Reality Clash — The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277, 280). It is argued that the provision was drafted in order to accommodate both the states that favour the crucial power held by the UNSC to determine the existence of aggression (and therefore the power to regulate its prosecution), as well as states that opposed any ‘special role’ for the UNSC in the prosecution of aggression. In this regard, The Rome Statute interlinks (or at least appears to interlink) with the UN Charter.

Exclusive authority by the UNSC — The importance of UNSC determinations

The UNSC has power to identify an act of aggression pursuant to article 39 of the Charter. The provision states that the UNSC

shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Whilst article 39 provides the legal basis for the characterisation of an act as one of aggression, as outlined below, the making of the determination itself is inherently political (McDougall above 281). In 1991, the International Law Commission provided an opinion on these political dimensions during discussions on the Draft Code of Offences against the Peace and Security of Mankind, asserting that both the crime and threat of aggression can be interpreted as ‘sui generis in that, by definition, they existed only if the Security Council characterised certain acts as such’ (See the Report of the International Law Commission on the Work of its Forty-Third Session).

On this point, Akande notes that the determination of whether a situation is a threat or breach of the peace or an act of aggression is clearly non-justiciable. It cannot be answered by ‘recourse to legal reasoning as there are no legal standards by which to reach a decision. It involves a political decision as to factual ammeters and is in no way constrained by legal considerations’ (Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations’ (1997) 46 International and Comparative Law Quarterly 309, 338). The UNSC’s interpretative exercise requires an evaluation of facts and an ‘appraisal of the international political situation to see both whether a particular label is justified and whether the interests of international peace and security will be furthered’ (McDougall above 281).

There is obiter commentary by the International Court of Justice that supports the UNSC’s exclusive prerogative to determine aggression. In his dissenting opinion in the Lockerbie Case, Weeramantry held that:

… the determination under article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the UNSC in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decision the Council may make under that Chapter. Thus any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal. [page 66]

Similarly, the International Criminal Tribunal for Yugoslavia in the Kanyabashi Case made an argument that also applies to aggression, stating that:

… the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber. (at paragraph [20])

Consequently, international criminal tribunals recognise that the determination of an act of aggression by the UNSC has a political dimension. Within this political context, the nature of article 39 determinations can also be viewed through the veto power of the UNSC’s permanent five members, which is ‘exercisable in relation to substantive questions’ that include the characterisation of acts of aggression (McDougall above 283). De Wet contends that the ‘structural bias in favour of the major powers is a clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’ (Erika De Wet, The Chapter VII Powers of the United Nations Security Council 134–5. See also McDougall above 283) as well as interests. Kelsen argued that the UNSC is not limited to ‘taking enforcement measures under articles 41 and 42’ as article 39 allows the UNSC to make recommendations ‘of any kind’ (Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 438. See also McDougall above 284).

Another argument of concern relates to article 103, which states that

[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The issue is that any Rome Statute provision granting the ICC jurisdiction to determine aggression would conflict with articles 24, which outlines the UNSC’s powers in respect of international peace and security, and 39, ‘which grant the Security Council the exclusive ability to determine the existence of acts of aggression and establish an obligation of the Member States to uphold the Security Council’s rights’ (McDougall above 285). Of further concern is where the UNSC adopts a resolution clearly identifying an act of aggression. Here, and on the basis of article 25, ‘it is claimed that a resolution determining the existence of aggression would be binding on the Member States of the United Nations and therefore all States Parties to the Rome Statute’ (McDougall above 285–6). Consequently, it is arguable that ICC judgments regarding the crime of aggression that reach an alternative conclusion to the UNSC’s resolutions would ‘create inconsistent obligations and therefore be unenforceable pursuant to article 103 of the Charter’ (McDougall above 286).

Policy considerations when determining and regulating aggression

If the determination of aggression is a political rather than legal act, then attention must be paid to the policy considerations driving that determination. These must be viewed through a realpolitik lens (McDougall) since the permanent five members of the UNSC and their allies view UNSC determination as the ‘conditio sine qua non for the inclusion of the crime of aggression’ (Hermann Von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed) The International Criminal Court: The Making of the Rome Statute 84). Scheffer also places a degree of an emphasis on realpolitik by viewing aggression as ‘one crime that other nations may seek to charge our deployed military with, regardless of the merits.’ He views it as a crime that ‘invites political manipulation to serve the interests of whoever regards any projection of military power to be aggressive’ (Quoted in McDougall above 307. See also D D N Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5).

There are other interpretations of how the permanent five members of the UNSC can ensure that it possesses the crucial prerogative to determine the occurrence of aggression. First, they desire the ability to protect their leaders from ICC prosecution (regardless of the merits of the legal case). Secondly, they will go above and beyond to protect this privileged status within the international arena ‘in the context of increasing debate about the need for Security Council reform’ (McDougall above 308). Thirdly, they are concerned with the ICC having jurisdiction over the crime of aggression, with their position being ‘premised on a belief that jurisdiction could be a sticking point, ultimately leading to a breakdown in negotiations’ (McDougall above 308). Such politics may see the crime of aggression undermined by the UNSC. The UNSC’s actions concerning aggression are evidence of ‘the legality of the State act element of the crime’; that is, actions leading to a less hostile and more cooperative relationship that provides for ‘resolutions vis-à-vis allegedly aggressive acts’ being drafted by the UNSC and considering future prosecutions (McDougall, 308).

Other policy arguments have been put forward demonstrating that aggression is more a political act:

  1. If the ICC has the right to determine the existence or occurrence of aggression, it undermines the UNSC since it can make the determination in situations where the UNSC failed to make an article 39 determination or taking enforcement measures under Chapter VII; (McDougall above 309. See also Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, at paragraph [61]);
  2. In a situation where the ICC determines the existence of aggression, the UNSC loses its ability to negotiation peaceful settlement of conflicts by offering amnesty; (McDougall above 309. See also Allegra Carroll Carpenter, ‘The International Criminal Court and the Crime of Aggression’ (1995) 64 Nordic Journal of International Law 223);
  3. ‘the ICC is not equipped to consider matters that may lie at the heart of allegations of aggression such as maritime boundaries, the scope of legitimate self-defence under article 51, and the status of self-help remedies under international law’ (McDougall above 309); and
  4. The ICC only possesses jurisdiction over natural persons and not states, so there would be implications for the rights of States (McDougall above 309. See also James Nicholas Boeving, ‘Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute’ (2004) 43 Columbia Journal of Transnational Law 557).

Conclusion

This piece has laid bare the political context of a determination of an act of aggression. Determination is a political rather than legal act, in part due to ineffective legal mechanisms in the UN Charter. However, it is also due to the considerations of great powers that wish to protect their privileged status in the international arena. The legal regulation of aggression by the ICC remains hostage to the political decisions of the UNSC, and whilst from 2017 the ICC will have jurisdiction to prosecute the crime, its ability to do so will rest on political decisions in New York rather than evidence tendered in The Hague.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne. 

OUP creates interactive online international legal history tool

Editors Articles, News

Oxford University Press has published an interactive online tool charting the history of international law. It is available here.

The blurb from the website states:

We have created a concise timeline mapping the broad history of public international law with particular attention paid to the signing of major treaties, the foundation of fundamental institutions, the birth of major figures in international law and milestones in the development of some of the field’s best-known doctrines. There are varying opinions on where to start in the history of international law, as well as arguments around periodising the dynamic developments, though for this project we have started our timeline with the Treaty of Tordesillas in 1494. Explore some of the major developments in the history of international law and read more by clicking through to freed-up chapters from the Oxford Historical Treaties, the Max Planck Encyclopaedia of Public International Law, relevant book chapters, blog pieces and journal articles.

Motion to ratify Optional Protocol to Torture Convention falls flat

Editors Articles, News

On 11 August 2015, Senator Penny Wright of the Australian Greens put forward a formal motion in the Australian Senate moving that the Government be called on to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Protocol).

The motion is available here on page 12.

Australia ratified the Convention Against Torture (Convention) in 1989 and the prohibitions contained in the Convention have been adopted in the Commonwealth Criminal Code. Whilst Australia signed the Protocol in 2009, it has not yet been ratified. Presently, 79 countries have ratified the Protocol, including the UK and New Zealand.

The Protocol would require Australia to allow visits by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.  In particular, Australia would be required to establish a National Preventative Mechanism (NPM) which would have, at minimum, the power to examine prisoners and detainees, make recommendations to national authorities and submit proposals with respect to Australian legislation.

Senator Wright’s motion provided at para (a)(iii) that:

 the establishment of an NPM:

  • had bipartisan support from the Joint Standing Committee on Treaties in 2009, and an implementation framework has been identified by the Australian Human Rights Commission,
  • would help address serious allegations of cruel, inhuman and degrading treatment occurring in some prison facilities in Australia and immigration detention facilities in Nauru, and provide the required transparency to allow health care practitioners and legal advisors to attend to good professional and ethical conduct for clients in detention, and
  • can also deliver improved workplace conditions for employees and efficiency dividends for the taxpayer.

The motion did not receive support from the Government or the Opposition.  Labor Senator, Claire Moore, stated:

…we did deny formality to this important motion, because it is our longstanding practice. Where we have an issue such as this which is complex and creates a number of complex situations and also determines significant discussions across all states and territories, we believe it is not appropriate to use the notice of motion process for that, and that is our standard practice.

As to the status of Australia’s implementation of the Protocol, the Australian Human Rights Commission states on its website that:

The Commission understands that a proposal for ratifying the [Protocol] is under consideration by the Australian Government, and consultations are continuing with the states and territories on necessary steps to implement the obligations under [the Protocol].

ILA Committee Update: Committee on International Law and Sea Level Rise — Rosemary Rayfuse

Editors Articles, ILA Updates

Australian members of the Committee:

  • Professor Jane McAdam, UNSW Australia – Co–Rapporteur
  • Professor Rosemary Rayfuse, UNSW Australia – Chair’s Nominee
  • Professor Clive Schofield, University of Wollongong – Ordinary Member
  • Derek Wong – Ordinary Member (Alternate)

The International Law Association (ILA) Committee on International Law and Sea Level Rise (Committee) held its first inter-sessional meeting on 12–13 June 2015 in Oslo. Hosted by Professor Davor Vidas (Committee Chair) and the Fridtjof Nansen Institute, the meeting was attended by 16 Committee members and 7 observers. After two intensive days of discussions, the participants wrapped up their deliberations with a dinner cruise on the Oslo fjord. Not only was the meeting productive, but it was highly enjoyable as well.

The foundation and mandate of the Committee

The Committee has its origins in the 2012 final report Baselines under the International Law of the Sea, which recognised that the loss of a state’s territory due to sea-level rise is not only a baseline or law of the sea issue, but encompasses other wider areas of international law. This was acknowledged in Resolution No 1/2012: Baselines under the International Law of the Sea, adopted at the 75th ILA Conference in Sofia, which led to the establishment, in the same year, of this new Committee.

The mandate of the Committee, approved by the ILA Executive Council and recalled in its first session, is ‘to study the possible impacts of sea-level rise and the implications under international law of the partial and complete inundation of state territory, or depopulation thereof, in particular small island and low-lying states;’ and to ‘develop proposals for the progressive development of international law in relation to the possible loss or all or parts of state territory and maritime zones due to sea-level rise, including the impacts on statehood, nationality, and human rights.’

As outlined in the proposal for the establishment of the Committee, three main avenues of enquiry were initially considered as relevant:

  • The consequences of sea-level rise on entitlements to maritime areas;
  • The consequences of sea-level rise on statehood; and
  • The consequences of sea-level rise on human rights and mobility (displacement, migration and planned relocation).

The research areas were reflected in the appointment of Professor David Freestone and Professor Jane McAdam as Co-Rapporteurs.

Work of the Committee in 2014–2015

In April 2014, the Committee held its first meetings in Washington DC, two closed sessions (see here and here) and an open session (here), during which participants discussed the working methods of the Committee and its mandate, as well as a background paper relating to the theme of mobility. It was decided to approach the issues initially in two distinct streams; one relating to maritime zones and the other to mobility and human rights, and, at a later stage, to concentrate on joining the streams in the consideration of the statehood issue. In this latter regard, it was suggested that representation and active participation in the work of the Committee by members from the Pacific and other regions likely to be most affected should be sought and encouraged. In addition, it was noted that the Committee’s mandate also invited broader considerations relating to the consequences of sea-level rise on other areas of international law including, but not limited to, international environmental law and the law relating to climate change adaptation and mitigation. The desire for the inclusion of additional expertise on the Committee to enable a fuller consideration of these broader issues was expressed.

At the inter-sessional meeting on 12–13 June 2015, discussion papers were presented on the two main areas of the Committee’s mandate. Of the Australian members, Professor Clive Schofield spoke on options to address the instability of baselines and maritime limits as a result of sea level rise and outlined recent trends in state practice towards the fixing of maritime boundaries and outer limit lines. In addition, in response to the wishes of the membership expressed during the Washington meetings, Professor Rosemary Rayfuse presented a paper on the broader issue of the impacts of sea-level rise on regimes relating to the protection, conservation and management of natural (as opposed to human) systems, including the Convention on Biological Diversity, the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Ramsar Convention on Wetlands of International Importance. Co-Rapporteur Professor Jane McAdam presented an extensive draft interim report on human rights and mobility prepared by a working group comprised of herself, Committee members Bruce Burson (New Zealand) and Walter Kälin (Switzerland), and Sanjula Weerasinghe.

Robust discussions were held on both the law of the sea and the human rights/mobility issues. There was a significant amount of agreement among the Committee members on both the issues for consideration and the possible recommendations that might be made as work progresses, which will be reflected in a draft interim report. This will be circulated to Committee members for comment and input prior to its submission for consideration at the 2016 ILA Conference in Johannesburg.

ILA members interested in the work of the Committee are invited to attend a seminar to be held at UNSW Law on Monday 10 August 2015 (details forthcoming) at which Co-Rapporteur Professor David Freestone will speak on the law of the sea and statehood issues.

Tribunal holds hearing on jurisdictional questions in Philippines v China arbitration — Lea Christopher

Editors Analysis, Articles

Introduction

From 7 to 13 July 2015, the Arbitral Tribunal held the first hearing in the arbitration between the Republic of Philippines and the People’s Republic of China in connection with their dispute in the South China Sea.  The arbitration was submitted by the Philippines on 22 January 2013, pursuant to the compulsory dispute settlement provisions under part XV of the United Nations Convention on the Law of the Sea (UNCLOS).  A five member ad hoc tribunal was constituted under annex VII of UNCLOS and sat in the Peace Palace, the headquarters of the Permanent Court of Arbitration, in the Hague. While the hearing was not open to the public, the Tribunal permitted the governments of certain states (Indonesia, Vietnam, Japan, Thailand and Malaysia) to send small delegations as observers.

The arbitration concerns disputes between the Philippines and China in relation to their maritime entitlements in the South China Sea. China has continued to reiterate its position of non-acceptance of (and non-participation in) the arbitration, maintaining that it believes in resolving disputes in the South China Sea via bilateral negotiations and that the arbitration violates previous agreements between the two states. The Philippines has sought to challenge this position at the hearing, submitting that they have pursued a course of bilateral and regional diplomatic efforts to resolve its disputes with China for almost two decades without success. The Philippines says that this has left no recourse other than arbitration.

In its Statement of Claim, the Philippines relies on UNCLOS which, it submits, defines and limits the entitlements of coastal states to a territorial sea, exclusive economic zone (EEZ) and continental shelf (and sets out states’ rights and obligations within those areas).  In particular, the Philippines relies on provisions that provide that a state’s EEZ cannot extend beyond 200 nautical miles from its mainland coast (or any island over which the state has sovereignty) (article 57), and that its continental shelf extends to the same distance (unless it can be established that the state’s continental margin extends beyond that distance) (article 76).

According to the Philippines, China contravenes these provisions by claiming, on the basis of its nine-dash line, ‘historic rights’ to areas that are beyond its 200M limit, including some areas that fall within 200M of the coasts of the Philippines’ main islands.  While China is a signatory to UNCLOS (which enabled the Philippines to commence the compulsory arbitral proceedings), it claims that it does not subscribe to some of its tenets.

However, the purpose of the first hearing was not to decide the Philippines’ substantive claims, but to decide whether the Tribunal has jurisdiction over these claims and whether they are admissible.

The Philippines’ substantive claims

At the hearing, the Philippines outlined the principal substantive claims that it intends to pursue if the Tribunal decides the question of jurisdiction in its favour. They can be summarised as follows:

  1. China is not entitled to exercise its alleged ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under UNCLOS.  Its nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’, is not supported by international law;
  2. The various maritime features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are either ‘rocks’ (within the meaning of article 121, paragraph 3 of UNCLOS), ‘low tide elevations’ or are permanently submerged.  While rocks generate an entitlement to a territorial sea of 12M (allowing China to exercise sovereignty over that area), they cannot generate an entitlement to an EEZ or continental shelf beyond that limit (and low tide elevations generate no entitlements).  China’s significant construction activities on various maritime features cannot change their nature in law;
  3. China has breached UNCLOS by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
  4. China’s fishing practices have damaged the marine environment in the South China Sea, including within the Philippines’ EEZ, in breach of UNCLOS. UNCLOS requires states parties to adopt measures to protect the marine environment.

The jurisdictional question

China’s position

In a position paper published in December 2014 (see also a summary of the paper here), China contended that the Philippines’ claims are beyond the scope of the Tribunal’s jurisdiction because they require the Tribunal to make determinations on territorial sovereignty and the delimitation of sea boundaries.

China made three interrelated claims in support of this contention. First, it claimed that UNCLOS does not give the Tribunal jurisdiction to address territorial sovereignty-related questions. According to China, in order to decide any of the Philippines’ claims, the Tribunal would be required to determine, directly or indirectly, the territorial sovereignty over various maritime features in the South China Sea, which is beyond the scope of UNCLOS.

Secondly, it claimed that in 2006, pursuant to article 298 of UNCLOS, China opted out of compulsory arbitration on particular categories of disputes, including those relating to sea boundary delimitations. Article 298(1) provides that, when signing or ratifying UNCLOS (or any time thereafter), a state may opt out of compulsory arbitration with respect to particular categories of disputes, one of which relates to sea boundary delimitations.  Article 298(a)(i) then provides that, when such a dispute arises and no agreement within a reasonable period of time is reached in negotiations, the opted out party must accept, at the request of the other party, submission of the matter to conciliation.

The Philippines has not requested that the parties participate in conciliation pursuant to article 298(a)(a) presumably because, as discussed below, its position is that the dispute does not concern sea boundary delimitations and therefore has not been ‘opted out of’ by China.

The Philippines’ position

At the hearing, the Philippines submitted that its claims do not require the Tribunal to make determinations on the question of territorial sovereignty or the delimitation of sea boundaries (its statement is available here). It emphasised that the Tribunal is really being asked to do the following:

  1. To clarify the nature of the disputed features in the South China Sea (ie, whether they are rocks, islands or low-tide elevations) that are relied upon by China to assert its claims, because the features’ characterisations determine whether they can be appropriated by China or can generate their own 200M EEZ; and
  2. To examine the validity of China’s nine-dash line based on its ‘historical rights’.

According to the Philippines, the question to be determined by the Tribunal on this issue, therefore, is whether UNCLOS allows a state to claim maritime entitlements based on ‘historic’ rights beyond those provided for in UNCLOS.

Accordingly, a key issue in the dispute is whether it is possible for the Tribunal to make determinations about the nature of particular maritime features and their entitlements, without addressing who actually exercises sovereignty over those features. The Tribunal will also need to consider whether it can determine the validity of the nine-dash line without addressing sovereignty over any of the maritime features within the area delimited by the line.

On a higher level, the Philippines painted the case as being a test of the utility and feasibility of UNCLOS compulsory dispute resolution mechanisms. Emphasising China’s ‘aggressive and disconcerting’ activities in the South China Sea, the Philippines contended that the dispute resolution mechanisms give weaker states the opportunity to ‘challenge the powerful on an equal footing’ on the belief that ‘law triumphs over force’. On this basis, according to the Philippines, a finding that the Tribunal lacks jurisdiction to hear its claims would render the UNCLOS dispute resolution mechanisms almost valueless for small states parties vis a vis their more powerful neighbours.

Conclusion

Notwithstanding the Philippines’ contentions concerning the case’s significance to the international community, the jurisdictional questions facing the Tribunal turn on the characterisation of the Philippines’ substantive claims and, in particular, whether they involve the determination of questions of territorial sovereignty.

The Philippines now has until 23 July 2015 to provide supplementary written submissions in response to questions posed by the Tribunal at the hearing. The Tribunal expects to determine the issue of jurisdiction by the end of the year. If it decides that it does have jurisdiction over the Philippines’ claims (and they are admissible), the matter will proceed to a substantive hearing. However, China has reiterated that it will not alter its position in the South China Sea and, therefore, is unlikely to comply with any unfavourable ruling ultimately made by the Tribunal.

Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.

International Economic Law Round-Up — Kyle Dickson-Smith

Editors Analysis, Articles

Political Hurdles for International Trade Deals Promote Transparency; Proliferation of Plain Packaging Laws and Associated Disputes

In the last few months there have been several key developments in international economic law:

  • The passage of both the Trans-Pacific Partnership (TTP) and Transatlantic Trade and Investment Partnership (TTIP) has been delayed due to political hurdles between the EU and the US. Local debate in the EU and US as to the benefits and costs of investor-state dispute settlement procedures (ISDS) has also arisen. While the US Congress has passed legislation to assist their adoption of the TPP, the current European political climate has made the future direction of ISDS in the EU unclear; and
  • Norway has announced it will implement standardised cigarette packaging while major tobacco companies have challenged UK plain packaging laws.

Political hurdles for the TTP lifted

After hitting repeated stumbling blocks in US Congress, the Trade Promotion Authority legislation (TPA legislation) eventually made headway. On 25 June 2015, the US Senate approved the TPA legislation and on 29 June the US President signed it into law.

The TPA legislation grants President Obama the power to submit completed trade agreements to Congress for a straight up-or-down vote without the possibility of amendment. The legislation was approved in the Senate late last month, following a debate as to the merits of ISDS.

On the international front, there have been ongoing negotiations in areas of trade and investment, particularly with respect to market access and intellectual property.

The previous ministerial level meetings of TPP member countries were postponed, reportedly due to the TPA legislation not being in place. However, negotiators did meet in Guam to discuss issues of intellectual property, textiles, investment and labour. It is anticipated that the passage of the TPA legislation will facilitate the resolution of the remaining contentious issues in the TPP negotiations, which include tariffs and quota removal on agriculture, with non-tariff barrier reductions on other goods.

While major US labour unions have lobbied against both the TPA legislation and the TPP on the basis that American workers would be detrimentally affected (by, for example, displacing local manufacturing and service sector jobs), business organisations have identified the trade deal as important in ‘levelling the playing field‘ for American businesses.

Political hurdles for the TTIP and ISDS

The European Parliament’s international trade committee (INTA) has outlined a series of recommendations in support of the TTIP’s trade and investment agenda, but the EU’s preferred format of the ISDS mechanism that it will formally propose to the US is far from clear. This follows the EU’s suspension of TTIP trade talks in early 2014 for the purpose of holding public consultations that were prompted by the ‘unprecedented public interest‘ in the negotiations.

INTA has proposed an independent arbitration court with publicly appointed judges and an appellate mechanism. This model is based on proposals from the EU Commission that were released in early May 2015.

The Commission’s proposals addressed the relationship between ISDS and domestic courts, including:

  • the right to regulate in the public interest; and
  • improving the function of arbitral tribunals through, for example, a permanent multilateral court and appellate mechanism to arbitrate investment disputes.

These proposals were based on the ISDS mechanism contained in a trade agreement negotiated between the EU and Canada (CETA) last year. The EU Commission has stated that the CETA ISDS is both innovative in its substance and procedure.

INTA made further recommendations on investment protection provisions, which were reportedly the result of a compromise between the European Parliament’s two largest groups, the Socialists & Democrats and the European People’s Party.  INTA’s recommendations are not binding, but are indicative of whether any agreement would be approved before a full session of the European Parliament.

Tobacco plain packaging

Developments have arisen in the sphere of tobacco plain packaging disputes. In its WTO claim against Australia, Ukraine made a request to suspend proceedings. Australia has supported this request. Ukraine based its decision to suspend its action on limited resources as well as absent ‘economic logic’. Whilst it is not clear how long the suspension will last, under the Dispute Settlement Understanding, Ukraine is allowed up to 12 months before the WTO Panel’s authority will lapse.

Meanwhile, Norway issued a notification under the WTO Technical Barriers on Trade Agreement, that it is proposing a requirement for all tobacco products to be sold in standardised packaging. Norway explained that the proposal will involve ‘uniform layout and design on all tobacco packaging, as well as a ban on manufacturers’ logos, trademarks, images, colours or other forms of advertising’. It is not clear when the new requirements will enter into force.

In the UK, tobacco companies British American Tobacco and Philip Morris have challenged the legality, under both English and EU law, of the UK’s plain packaging laws before the High Court. It is argued that the laws deprive the tobacco companies of trademark rights without fair compensation as well as preventing the free movement of goods.

In a press release, British American noted that it ‘did not ultimately prevail’ in its challenge against Australia’s plain packaging laws in the High Court owing to a ‘unique requirement in the Australian constitution that meant it would only win the case if it could prove the Australian Government had received a benefit by removing its brands’. British American stated that no such requirement exists in the UK.

Kyle Dickson-Smith, FCIArb. is an international lawyer and arbitration counsel at Appleton & Associates International Lawyers, who specialises in trade law and investment treaty disputes, such as the NAFTA. The views expressed in this article are those of Kyle Dickson-Smith and are not attributable to Appleton & Associates.

 

Response to Department of Immigration discussion paper on Australian citizenship – Stephen Tully

Editors Analysis, Articles

The Department of Immigration and Border Protection issued a discussion paper entitled ‘Australian Citizenship – your right, your responsibility’ raising several questions, including whether Australia should deprive Australian mono and dual nationals of Australian citizenship.

This submission by Stephen Tully – a member of the ILA’s National Management Committee – reviews international legal material and the UK’s experience relevant to the questions raised, identifies the applicable prerequisites, standards and safeguards, and considers some possible domestic and international consequences for affected individuals and Australia.  It is available here.

Tully states in the executive summary of his submission that:

  1. Proposals to deprive Australians of citizenship which draw upon legislation taken from the United Kingdom (UK) must appreciate the particular international and national background to that legislation. The UK position cannot be transplanted into the local context without appropriate adaptation.
  2. An outcome which ensures that former Australian nationals are not rendered stateless would be consistent with international law on preventing statelessness. The deprivation of Australian nationality for dual nationals would be consistent with that objective.
  3. The international legal consequences of depriving dual national Australians of their Australian nationality must be understood. Other States may not be obliged to recognise and give effect to the deprivation of Australian nationality by Australia. With respect to both citizenship deprivation and the expulsion of aliens, Australia must also comply with existing international law (on statelessness, nationality and the protection of human rights) in addition to emergent international law concerning the expulsion of aliens.