ICSID v. UNASUR: same game, new rules?

By Dr Antoine P. Martin

Attempts to limit the jurisdiction and reach of ICSID seem to be progressing as South American states’ efforts to foster regional cooperation through a new regional organisation (regrouping Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela) gain in precision.

Given the numerous investment claims brought by foreign investors against South American States lately, governments have thought about setting rules for an alternative investment protection and dispute settlement mechanism in which greater consideration would be given to sovereign and regulatory needs (see our previous post on Venezuela’s withdrawal from ICSID), and where appeal and precedents mechanisms would be put in place. Following the entry into force of the ‘Unión de Naciones Suramericanas’ (UNASUR) constitutional statutes in 2011 (for a chronology, see this very informative piece by the IIS), the famous EFE Press Agency indicated in Mid April that efforts towards the creation of a dispute settlement centre are becoming more concrete.

Kiobel, extraterritoriality and the ATCA

By Francisco J. ZAMORA CABOT, Professor of Private International Law at the University Jaume I, Castellon, Spain.

The issue of extraterritoriality is currently envisaged as one of the keys to the resolution of the well-known and crucial Kiobel case, before the Supreme Court of the United States, which we are expecting any time now. However, the Alien Tort Claims Act (ATCA) has nothing to do with extraterritoriality. That legislative text and its judicial practice must be maintained in the field of international torts on human rights, they are special illegal acts that have to be solved through the interplay of the Conflicts of Laws and Public international law. In no way, that legal text and its practice portray an imperialistic position on the part of the United States in front of other States, or an excess of jurisdiction vis-a-vis the Law of Nations. Quite simply, the attempt to place ATCA out of its scope should be rejected, and has to be considered as mischievous and/or arbitrary.

BH in the UK Supreme Court: Weighing the best interests of the child

By Rebecca M.M. Wallace (Professor of International Human Rights and Justice, Robert Gordon University, Aberdeen, UK) and Karen Wylie (Research Assistant, Robert Gordon University, Aberdeen, UK)

The principle of the best interests of the child is enshrined in international law by Article 3 of the 1989 UN Convention on the Rights of the Child (UNCRC). Similarly the right to family life is protected by Article 8 of the European Convention on Human Rights (ECHR). In June 2012, in the case of BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) Trinity Term [2012] UKSC 24, On appeal from: [2011] HCJAC 77 (hereafter referred to as BH), the UK Supreme Court had to consider the weight to be given to these principles in the context of the extradition of a couple to the US and the effect this would have on their children.

Very briefly, the charges against the couple, Mr and Mrs H, were conspiracy and unlawful importation into the US of chemicals used to manufacture methamphetamine in the knowledge of, or having even cause to believe, that they would be used for that purpose. Mrs H is the mother of six children whose ages ranged, at the time of the case, from 14 to one year. Mr H is the father of the four youngest children. The Supreme Court acknowledged that the children’s interests would be interfered with, at least to some degree, by the extradition of either parent, and if both parents were to be extradited the effect on the family life of the children would be “huge”. The issue confronting the Supreme Court was the weight to be given to the children’s best interests, and whether on considering these best interests, the extradition of both parents, or either of them, would be proportionate. In assessing the parents’ case the Court relied heavily on a previous case, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), in which the weight to be given to the best interests of a child who faced the removal of one of his parents from the UK, was discussed at length.

A Note On The ICJ Judgement In NICARAGUA v COLOMBIA and its relevance to International Crime and Criminal Law

By Dr Olga Martin-Ortega, Reader in Public International Law, Greenwich University

Seen on another blog, an interesting comment by Professor Steven Haines on the potential impacts of a recent Judgement of the International Court of Justice, The Hague.

In November 2012, the ICJ released its decision on the Territorial and Maritime Dispute between Nicaragua and Colombia. Right after the decision was made public, Haines notes, comments suggested that the ICJ might have negative consequences on crime combating in the Caribbean. His article thus offers an extensive summary of the facts and proceeds, but it also goes on to an interesting debate on how a ruling on territorial and maritime soverignty may in practice relate to international criminal law.

Here is an abstract, the full article is available here

“It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all. As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force [...] We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law. If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences. A broader definition arguably includes all serious crimes having a significant international dimension. Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions. One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics”.

The Relevance of the Gotovina Judgment

By Iva Vukusic, The Hague

 

The Appeals Judgment

 

‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice’# is what judge Fausto Pocar, one of the five appellate judges in the Gotovina and Markac trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), states in his Dissenting opinion (paragraph 39). That harsh statement, along with others in the Opinion, indicates just how significant the differences were between the judges’ interpretations during the deliberations on the responsibility of Croatian generals Ante Gotovina and Mladen Markac, sentenced by the Trial Chamber in April 2011 to 24 and 18 years of imprisonment, respectively, for taking part in a joint criminal enterprise the objective of which was the permanent removal of the Serb population from the Krajina region #. The events took place during and after Operation Storm conducted by the Croatian Military and Police forces in August 1995.

Diaspora politics: What does it yield?

By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

It was very enlightening to read Terrence Lyons’ Article titled ‘Conflict-generated diaspora and transnational politics in Ethiopia.’ This is interesting partly because of the recent events in the country that have raised high levels of optimism and hope. These events, however, have been greeted with multiple feelings by the ‘locals’ and the ‘non-locals’, by those ‘fighting within’ and those ‘firing from afar.’ The scientific research findings suggest, as also alluded to by Terrence, that because of their traumatic past, the conflict-generated diaspora remain unflinching to compromise and usually demand for radical changes. This rigidity tends to protract conflicts, where they exist, or antagonise an already emboldened dictatorial regime.

Dual Identity for Libyans off the table?

By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

The transition to democracy in Libya is on-going. So far, the people have only succeeded to untie themselves from the dictator’s iron fist. Before they start to feel what it means to live in freedom, the ethnic and tribal divides are being drawn as the not so new fault lines for yet another chapter of conflict. What one could reasonably ask, therefore, is would it be a prudent move if a dual identity through the federal set up is at least discussed to be put in place for the new Libya?