Non-state Parties Research Articles

The applicability of the Monetary Gold principle in international arbitration

According to the Monetary Gold principle, the the International Court of Justice (ICJ) will not exercise its jurisdiction where the legal interests of a third state ‘would form the very subject-matter of the decision’. This principle has been interpreted narrowly by the ICJ and therefore only in two cases (The Monetary Gold case and East Timor case) the ICJ held that it could not exercise its jurisdiction due to this principle. Although the Monetary Gold principle was applied by the ICJ in cases that involved the legal interests of third states, it has been suggested that the principle should be applicable also in international arbitration and also with regard to third non-State Parties. One international arbitral tribunal already applied the Monetary Gold principle due to the interests of a third state and a few other international arbitral tribunals seemed receptive to the idea that the principle could apply to third non-State Parties. Although, at first blush, there are good reasons to argue that the Monetary Gold principle could apply in international arbitration and with regard to non-State Parties, this article explains why it is best to keep the Monetary Gold principle confined to the ICJ.

Heritage Beyond Borders: Australian Approaches to Extra-National Built Heritage

The rights of the state to protect heritage within its borders, to ratify international conventions and to cooperate in bilateral engagements have been foundational concepts of heritage governance. Extreme circumstances may result in an intervention by non-state parties, but in times of peace it is typically the state that prevails. Drawing from recent efforts (2000s) of the Australian Federal Government to create a ‘List of Overseas Places of Historic Significance to Australia’, this paper explores the complications that can arise from the privileging of state authority in current approaches to heritage. This serves as a point of departure for considering the more widely applicable contradictions, limitations and loopholes of a global approach that favours the ‘state’ and the ramifications this might have for heritage diplomacy.

To Arrest or Not to Arrest the Incumbent Head of State: The Bashir Case and the Interplay between Law and Politics

In 2009, Sudanese President Omar Hassan Ahmad Al Bashir (‘President Bashir’) was indicted by the International Criminal Court (‘ICC’) on charges of war crimes and crimes against humanity over the conflict in the western region of Darfur, Sudan. The following year the ICC charged President Bashir with genocide over events in Darfur, where allegedly more than 300 000 people have died and more than two million people have been displaced since 2003. Before the ICC can prosecute President Bashir, it has to obtain custody over him. As a judicial institution without power to arrest those it indicts, the Court relies on national authorities. States to which President Bashir has travelled since the warrants for his arrest have been issued have been reluctant to arrest and surrender President Bashir to the ICC justifying their refusal by the head of state immunity argument. By focusing on the specific response of the South African government to the ICC’s arrest warrant against President Bashir in June 2015, this article considers the question of whether states must cooperate with the ICC in instances of an arrest warrant against a sitting head of state of a non-state party and observes the broader implications of state responses similar to the South African case.

Minimizing Human Suffering and Protecting Persons Affected by Conflict: A Critical Appraisal of the Compliance System of International Humanitarian Law

Egregious violations of international humanitarian law (IHL) are being committed every day both by states and non-state parties to a battle. This does not, however, mean that all contemporary armed conflicts are always and inexorably characterized by sweeping and widespread violations. Nevertheless, the disregard of IHL causes devastation and appalling suffering for the victims. What makes such violations even more reprehensible is that the sufferings could be avoided had the pertinent IHL rules were respected. Hence, initiatives should focus on enhancing the efficacy of IHL compliance mechanisms to ensure the lofty aim of IHL, minimizing human suffering and protecting victims. In this essay, a scrutiny on the adequacy of current IHL compliance system in light of contemporary armed conflict is made and a conclusion as to the existence of loopholes has been reached.

Prosecuting ISIS at the ICC

ISIS began as a fledgling group in United States military jails following the second Iraq war. It came onto the world stage in 2014 when it overwhelmed ill-equipped American trained Iraqi forces. Since its ascendency the group has been responsible for killing and uprooting thousands of Yazidis and Shi’a Muslims. The group consists of an unusual coupling of religious extremists recruited from the Arab and European States and ex-Ba’athist military and political officials. It has committed its atrocities with relative impunity, posting videos of gruesome killings online and documenting its reign of terror in print media and on the Internet. Part of the reason the world community has been unable to punish ISIS officials and hinder its efforts is that there does not exist any legal mechanism by which to arrest and prosecute ISIS members.The International Criminal Court currently stands as the one permanent international legal institution endowed with the ability to prosecute for individual criminal liability. Contrary to the Prosecutor’s April 8, 2015 statement that the Court does not have territorial and personal jurisdiction to prosecute ISIS officials, I argue in this paper that there exists the ability within the ICC’s jurisdictional framework to prosecute ISIS if the Court adopts an expansive approach to jurisdiction that aggregates evidence from attacks taking place on the territory of both State and non-State Parties. This approach is permissible when considering attacks that occur within the context of the same ongoing conflict and perpetrated by the same organization, in this case ISIS. I employ both procedural and textual justifications to support my contention that the ICC has jurisdiction to prosecute ISIS. Procedurally, the progressive prosecutorial process that begins with a referral then preliminary examination leading to a formal investigation and then subsequently to an arrest warrant becomes more focused and precise at each step. I term this the “Funnel Approach.” Textually, the Rome Statute drafters included open-ended provisions related to admissibility requirements, such as the ‘gravity’ threshold. I argue the ‘gravity’ threshold allows evidentiary admissibility outside the traditional notions of territorial jurisdiction in Article 11. The subsequent ability to aggregate relevant evidence from ISIS attacks on both State and non-State Party territories would reach the requisite ‘gravity’ threshold whereas considering the disparate and tangential attacks only on State Party territories may not reach the threshold. Expanding the consideration of attacks in non-State Party territories (e.g. Iraq and Syria) and combining that information with attacks on State Party territories (e.g. Belgium or France) when those attacks are committed pursuant to an organizational policy by the same organization in the midst of the same conflict (in this case, ISIS’s continued campaign of solidifying its ‘caliphate’) would subject all ISIS members, including leadership and subordinates — irrespective of nationality or residence — to the ICC’s jurisdiction. After outlining my expansive jurisdiction argument I tackle possible criticisms, namely that expanding ICC jurisdiction impinges on State sovereignty, obviates judicial neutrality and injects uncertainty into the jurisdictional analyses.

PRIVATE COMMERCIAL LAW CONVENTIONS AND PUBLIC AND PRIVATE INTERNATIONAL LAW: THE RADICAL APPROACH OF THE CAPE TOWN CONVENTION 2001 AND ITS PROTOCOLS

It is a remarkable circumstance that with a few honourable exceptions all writers on international law in general and treaty law in particular focus exclusively on public law treaties. Private law conventions, including those involving commercial law and the conflict of laws, simply do not come into consideration. Yet such conventions, like public law conventions, are treaties between States and are governed by the 1969 Vienna Convention on the Law of Treaties and many of them are of great significance. Their distinguishing feature is, of course, that while only States are parties, private law conventions deal primarily, and often exclusively, with the rights and obligations of non-State parties. So while the treaty is international it does not for the most part commit a Contracting State to any obligation other than that of implementing the treaty in domestic law by whatever method that State's law provides, if it has not already done so prior to ratification.

Carsten Stahn (ed.),The Law and Practice of the International Criminal Court

The first decade of the International Criminal Court (ICC) has passed, and increasingly, there is the sense that ‘the time of experiments is over’. 1 Assessments of both the Court, and more broadly, the international criminal justice project, are achievable. More significantly, such assessments are now able to rest upon discernable facts regarding the work and operations of the Court — as well as invoking the ‘faith’ that has traditionally galvanized international criminal justice. 2 In The Law and Practice of the International Criminal Court , editor Carsten Stahn has compiled 50 substantive chapters. Each chapter in this volume is impressive. The book provides an important contribution to the discourse around how the ICC can be understood and assessed after its first decade. The book is structured into six parts. The first part examines the ‘Context, Challenges, and Constraints’ of the ICC. Here, authors conduct analysis on questions of finances and resources, relationships to other institutions and the particular challenges faced by the ICC when operating within a political world. Part Two, entitled ‘The Relationship to Domestic Jurisdictions’, focuses on admissibility challenges, immunities, the relationship of the Court to non-state parties, self-referrals and ad hoc declarations of acceptance of jurisdiction. This is a rich section of the book, with extensive material on various aspects of how the ICC exercises its jurisdiction.

Security Council Referrals to the International Criminal Court as Quasi-Legislative Acts

In 1998, the international community decided to establish the first permanent International Criminal Court (ICC) with jurisdiction over persons for the most serious crimes of international concern, as referred to in the Rome Statute. As noted by many observers, some of the specific crimes within the Rome Statute are not grounded on customary international law but are more germane to treaty-based crimes. Thus, the exercise of treaty-based jurisdiction over non-party States would conflict with the principle pacta tertiis nec nocent nec prosunt. While the ICC jurisdiction is limited to crimes committed in the territory or by nationals of its States Parties, the Court may, where a situation is referred by the UN Security Council under Chapter VII of the UN Charter, exercise jurisdiction over crimes committed in the territory and by nationals of States not party to the Statute. Since the Rome Statute may go beyond existing applicable law, the referrals to the ICC are thus normative in their character. They impose new rules to be observed by any actors in the situations referred. This paper argues that this feature of a Security Council referral fits the definition of an international legislative act. The paper also inquires whether the obligation to cooperate fully with the Court arising from the Security Council resolution and the principle of complementarity require the State to modify its domestic law.

Mitigating humanitarian crises during non-international armed conflicts—the role of human rights and ceasefire agreements

Situations of humanitarian crisis are often caused by armed conflicts. Given the prevalence of non-international armed conflicts today, ways of ameliorating these situations are at the forefront of concerns. The international humanitarian law rules governing non-international armed conflict remain much less developed than those for international armed conflicts. This makes governing the behaviour of non-state parties to non-international armed conflicts (non-state armed groups) extremely challenging. This is exacerbated by the lack of direct human rights obligations for non-state armed groups. Although several initiatives have been taken to encourage non-state actors to mitigate situations of humanitarian crisis, the role of human rights law is somewhat under-developed in this respect. The paper aims to assess what role human rights may have in improving humanitarian crises, suggesting one specific way in which they may be used. In order to achieve this, the paper will first discuss the international laws applicable to situations of non-international armed conflict. The paper will then critically analyse some of the initiatives that have already been taken to mitigate the disparity in human rights protection during armed conflicts. Based on the findings of this analysis, a new measure—the possibility of using a ceasefire agreement to impose specific human rights obligations on all parties to a conflict—will be assessed. An evaluation of the merits and challenges raised by this suggestion will lead to a conclusion as to the role that human rights and ceasefire agreements could have during humanitarian crises.

Mitigating Humanitarian Crises During Non-International Armed Conflicts The Role of Human Rights and Ceasefire Agreements

Situations of humanitarian crisis are often caused by armed conflicts. Given the prevalence of non-international armed conflicts today, ways of ameliorating these situations are at the forefront of concerns. The international humanitarian law rules governing non-international armed conflict remain much less developed than those for international armed conflicts. This makes governing the behaviour of non-state parties to non-international armed conflicts (non-state armed groups) extremely challenging. This is exacerbated by the lack of direct human rights obligations for non-state armed groups. Although several initiatives have been taken to encourage non-state actors to mitigate situations of humanitarian crisis, the role of human rights law is somewhat under-developed in this respect.The paper aims to assess what role human rights may have in improving humanitarian crises, suggesting one specific way in which they may be used. In order to achieve this, the paper will first discuss the international laws applicable to situations of non-international armed conflict. The paper will then critically analyse some of the initiatives that have already been taken to mitigate the disparity in human rights protection during armed conflicts.Based on the findings of this analysis, a new measure — the possibility of using a ceasefire agreement to impose specific human rights obligations on all parties to a conflict — will be assessed.An evaluation of the merits and challenges raised by this suggestion will lead to a conclusion as to the role that human rights and ceasefire agreements could have during humanitarian crises.

The ICRC's legal position on the notion of armed conflict involving foreign intervention and on determining the IHL applicable to this type of conflict

AbstractThis article looks at the legal position of the International Committee of the Red Cross (ICRC) on situations in which a State, a coalition of States or an international or regional organization intervenes in a pre-existing armed conflict, either giving support to one of the parties or exercising control over a non-State armed group party to the armed conflict (hereafter “non-State party”). For the purposes of this article, foreign intervention is considered to be a form of “co-belligerency” of such a degree that it makes the intervening power a party to the armed conflict. Situations in which there is no objective link between the foreign intervention in the territory of a third State and a pre-existing armed conflict in that same territory are therefore excluded from the scope of this article.The aim of this article is to describe how the ICRC determines the applicability of international humanitarian law to such situations, based on the existing law and an approach that examines each bilateral relationship between belligerents separately.The article also explains why the ICRC abandons the use of the term “internationalized internal armed conflict”, which is misleading in that it suggests that only the law of international armed conflict applies. The ICRC is therefore using new terminology for the legal classification of such situations; this change is intended to align the terminology used with the realities of the applicable law.

Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants

AbstractThe United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air sets out an ambitious international approach to prevent and combat the smuggling of migrants. Although the Protocol has found widespread adoption worldwide, many countries have not—or not yet—signed and ratified the Protocol. Many critics argue that the Protocol promotes the views of rich, developed destination countries and offers little incentives for developing countries of origin to support the Protocol. This paper examines the reasons why some countries choose not to ratify the Protocol. The paper sheds light on the common concerns and characteristics of the forty-five non-Party States in order to pave the way for wider adoption of the Protocol and for more concerted efforts to combat the smuggling of migrants worldwide.

The Potentially Expansive Reach of the International Criminal Court

The prospective reach of the International Criminal Court, in terms of its territorial jurisdiction, was the single most controversial issue to arise during the creation of the Court’s charter. For better or for worse, no case to come before the Court to date has resulted in the need for significant interpretation of the provision that lied at the heart of the controversy. That provision, Article 12 of the Rome Statute, states that the Court has territorial jurisdiction where “the conduct in question” occurred on the territory of a State Party. While application of that requirement has been clear so far, the Court is virtually certain to face challenges regarding its interpretation going forward. In fact, any case to come before the Court involving a cross-border crime – one in which the conduct occurs in one state and the harm occurs in another or in which the elements of the underlying crime are otherwise split between or among states – would likely be sufficient to invite tremendous consternation. This is particularly true where parts of the underlying crime occur on the territory of a non-State Party. This paper explores several theories of territorial jurisdiction and considers whether, or to what extent, each of them should inform options available to the Court. The paper shows just how expansive the territorial jurisdiction of the Court might be and, in doing so, draws attention to the urgent need for scholars to consider of the ideas it puts forth, including the potential need for limiting principles that lie outside the text of the Rome Statute itself.

Legitimacy Narratives in Polycentric Water Law and Governance

Global water law and governance is horizontally and vertically fragmented, very complex, involves both state and non-state parties, and is established under and / or mandated by national, supranational (eu) or international law. Accordingly, it can be qualified as polycentric governance. Any governance system — but a polycentric governance system in particular — raises questions of its legitimacy. The paper aims to look at one specific segment of this legitimacy discourse, namely how an international organization that is a ‘centrepiece’ in a polycentric governance system attempts to legitimize itself: that is, to justify its activities in order to gain social acceptance. For this purpose, the legitimacy narratives of a rather successful river basin organization — the International Commission for the Protection of the Danube River — will be analysed as a case study for obtaining a better understanding of the specific nature of polycentric governance and its legitimacy narratives.

Prosecutor v. Laurent Koudou Gbagbo: Judgment on the Appeal Against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of the Proceedings (Int’l. Crim. CT.)

On December 12, 2012, the Appeals Chamber of the International Criminal Court (Court) in the case of Prosecutor v. Laurent Koudou Gbagbo unanimously confirmed the Pre-Trial Chamber I decision to dismiss Mr. Gbagbo’s challenge to the jurisdiction of the Court. In the Judgment, the Appeals Chamber, for the first time, was called to interpret Article 12(3) of the Rome Statute (Statute), which allows a non-party State to accept the jurisdiction of the Court on an ad hoc basis without acceding to the Statute. The Judgment further includes two procedural issues. Firstly, the Appeals Chamber found that although the Pre-Trial Chamber erred by not rendering a separate decision on Côte d’Ivoire’s request for leave to submit its observations, this error did not materially affect the Pre-Trial Chamber’s decision. Secondly, the Appeals Chamber dismissed, in limine, Mr. Gbagbo’s request for a stay of proceedings based on allegations of violations of his fundamental rights, since it was not jurisdictional in nature and thus fell outside the scope of the appealable matter.

ICC Fugitives: The Need for Bespoke Solutions

It is axiomatic that the ICC depends on the cooperation of the international community, including state parties and non-party states alike, to carry out its mandate to prosecute the “most serious crimes of international concern.” Nowhere is this dependency more apparent than with respect to the imperative of gaining custody of the accused. Given the high degree of situational variation, strategies aimed at gaining custody of one fugitive will not necessarily be effective with others. As such, the international community — in coordination with the Court — needs to devise bespoke solutions. This paper discusses the particular circumstances of each of the current at-large accused and outlines a host of measures that could be employed for improving the prospects of bringing the remaining fugitives into custody. This article appeared as part of UCLA School of Law’s forum on the International Criminal Court established as part of the Sanela Diana Jenkins Human Rights Project in partnership with the Office of the Prosecutor of the International Criminal Court.

The broad view of warfare ecology: response to Marler

SummaryA recent Comment article suggested replacing the established term warfare ecology with the name ‘military ecology’. This emerging and important sub-discipline requires an accurate, inclusive, and descriptive name. Maintaining the broad term warfare ecology reaches beyond the military to beyond to involve a much wider range of processes and stakeholders, including non-state parties and insurgencies, contractors, civilians, humanitarian and relief organizations, and reconstruction/restoration efforts. It has been adopted by practitioners from a similarly diverse range of disciplines, and used for important research that would not be included under a field limited to military studies.

The Barbary Pirates

This essay describes the piracy that took place in the Mediterranean from the time of ancient Greece to Barbary. It explains the corso, the sea war between nonstate but state-endorsed Christian and Muslim parties, with reference to the Knights of Malta and, more extensively, the Barbary corsairs. Although the essay focuses primarily on history, it also draws some conclusions about piracy and the international system today. The essay notes a prevailing assumption that contemporary piracy off Somalia and that perpetrated by the Barbary pirates is similar, but it further notes that any similarities are slight and superficial. At the same time, similarities rooted in economic, social, and political change do exist between all outbreaks of depredation at sea and the responses to them.

Asian Values v. The Paper Tiger: Dismantling the Threat to Asian Values Posed by the International Criminal Court

In a decade of shifting norms and changing practices in international criminal law, the principle of complementarity has emerged as the primary, but as-yet incompletely defined, mechanism of the International Criminal Court (ICC) to coax states towards enforcing individual accountability for international crimes. By enabling the ICC to decide whether specific cases are admissible, and whether to investigate and prosecute individuals of a state potentially without that state’s consent, complementarity is also the largest stumbling block for Asian states’ participation in the ICC. In particular, member states of the Association of Southeast Asian Nations (ASEAN), where the ‘Asian values’ of non-interference in domestic affairs and deference to state sovereignty are the foundation of inter-state relations, take issue with the competence of the ICC. This article analyses the extent to which such Asian values are a legitimate basis for ASEAN resistance to the ICC treaty regime in the context of the design and emerging practice of the ICC concerning complementarity and referral mechanisms. It suggests that, both in substance and procedurally, the ICC regime may represent less of a threat than anticipated to these Asian values, and that notwithstanding non-ratification, continued engagement between the ICC and ASEAN non-states parties may gradually promote the internalization of norms consistent with the ICC’s aims.

Sovereign Immunity and Enforcement of Awards in International Commercial Arbitration

International commercial transactions often involve states and state agencies in contractual dealings with individuals and multinational corporations and owing to the reluctance of states to subject disputes arising from their transactions to the courts of another state, arbitration is often the forum of choice for resolution of disputes arising from such international commercial transactions involving state parties and their agencies. The ultimate goal of arbitration proceedings is the rendering of an enforceable award for settlement of the disputes between the parties. However, in the event of an unfavorable award against a state or state agency in international arbitration, one veritable hurdle usually encountered by the successful party in enforcing the award is the plea of sovereign immunity by the state entity. Since the very essence of arbitration is the rendering of an enforceable award, this plea of sovereign immunity serves to frustrate and defeat the essence of entering into an international arbitration with a state entity. Nevertheless, in view of the nature of international business transactions, multinational companies and other international business agencies cannot avoid dealing with state entities and international arbitration remains the preferred dispute resolution forum for these international transactions. So how do these individuals and multinational corporations protect themselves, their investments and the sanctity of their arbitration proceedings from been frustrated by a plea of sovereign immunity by the state party in the event of a successful award?This research aims at undertaking a critical analysis of the concept of sovereign immunity and its applicability to international commercial arbitration proceedings and to highlight recent trends and issues in the area of sovereign immunity that are frequently encountered in international commercial arbitration. Essentially, this research shall examine the problems encountered by non-state parties in enforcing a successful award against state entities and scrutinize the various ingenious ways that have been devised by these non-state parties to side-track and subvert the plea of sovereign immunity by state entities.