Chagos islands, at International Court of Justice and on to UK campaign trail

The new print edition of the American Journal of International Law includes my essay on last February’s International Court of Justice decision respecting the Chagos islands. This post describes that publication and takes note of developments since it went to press.

My essay, “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” 113 AJIL 784 (2019), may be accessed at this SSRN link or at the AJIL website.

The essay outlines the ICJ advisory opinion, which is available here. It explains that the Chagos Archipelago, a group of islands located in the Indian Ocean, was considered part of Mauritius when both formed a British colony. But after Mauritius won independence in the mid-1960s, the United Kingdom kept the archipelago, naming it the British Indian Ocean Territory, then forcibly removed its inhabitants and leased it for a US military base, CNIC Naval Support Facility Diego Garcia, that is still there today. The legality and effects of these actions lay at the heart of the ICJ’s advisory proceedings, instituted following a request by the United Nations General Assembly.

The abstract elaborates:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

Notably, all on the ICJ bench agreed with the result except for the U.S. judge, Joan E. Donoghue, who maintained that the court ought not to have exercised its discretion to consider the issue on the merits.

Since 2017, for the 1st time in the court’s history, there has been no ICJ judge from the United Kingdom. As my essay indicates, UK officials spoke out against the court’s advisory opinion, framing it as a bilateral dispute over sovereignty, and stating that Britain would not “cede sovereignty to Mauritius” until Britain determined the archipelago “is no longer required for defence purposes.”

After the essay went to press, the United Kingdom reiterated that position in a 30 September 2019 letter to UN Secretary-General António Guterres, requesting that it be circulated to the General Assembly.

Two weeks earlier, Pope Francis had weighed in, on behalf of the Chagossians. In his words:

“Not all things that are right for humanity are right for our pocket, but international institutions must be obeyed.”

Maintaining the current British policy is the Tory government led by Prime Minister Boris Johnson. Its policy stands in contrast with that of Labour, the Tories’ principal rival; as the Guardian reported on Friday:

“Jeremy Corbyn has pledged to renounce British sovereignty of the remote Chagos Islands and respect a UN vote calling for the archipelago to be handed back to Mauritius.”

In short, the immediate fate of the islands may depend – not unlike Brexit – on the Britain’s next general election, set for 12 December.

On NGOs’ amicus curiae efforts to friend state-centric international tribunals

arcsunShould nongovernmental organizations be friends of intergovernmental courts? Put another way, is there a role for the NGO amicus curiae in tribunal that states have set up to deal with international disputes?

These are questions that Western Ontario Law Professor Anna Dolidze explores these questions in her just-published, information-filled American Society of International Law Insight, “The Arctic Sunrise and NGOs in International Judicial Proceedings.”

Dolidze’s news hook is The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), filed in late November with the Hamburg-based International Tribunal for the Law of the Sea. At issue was the seizure of Arctic Sunrise, Dutch-flagged ship owned by Greenpeace International, an NGO that, in its own words, “acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace.” During a protest at the offshore oil rig Prirazlomnaya, Russia had seized the boat and detained its crew members on criminal charges. (credit for 2007 photo of the ship) They were not released till very recently.

While the matter was pending, Russia declined to appear before the law of the sea tribunal – though it did object to a Greenpeace petition to file an amicus brief due, Dolidze reports, “to the ‘non-governmental nature’ of the submitting organization.” The tribunal thus kept the brief out of the case file, even though its members and the parties were able to review the document. Dolidze’s Insight underscores the tension in this resolution, given Russia’s nonappearance, on the one hand, and the direct effect of the dispute on Greenpeace, on the other hand.

The Insight tracks other tribunals’ varied treatment of such petitions. Among the most restrictive is the International Court of Justice, another tribunal in which only states may litigate contentious cases; Dolidze cites ICJ Practice Direction XII, which handles amicus briefs much as ITLOS did in Arctic Sunrise. Among the most expansive is the Inter-American Court of Human Rights’ rule 41, which accepts such briefs within a specified timeline. Others – the European Court of Human Rights, the World Trade Organization dispute mechanisms, and the International Criminal Court – are in between. In sum, Dolidze writes:

‘Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings.’

Not all agree this is a good thing. Dolidze points to a 2007 article in which Melbourne Law Professor Robin Eckersley favored NGO participation for its “potential of creating a transnational space for dialogue.” But she also  quotes Arizona State Law Professor Daniel Bodansky’s 1999 caution that amicus litigation by nongovernmental organizations ought not to be conflated with public participation. Dolidze sees in the Greenpeace matter a timely opportunity to revive this debate.

In lovely Sicily, specialists discuss globalization & international criminal law

duomoSIRACUSA – For the 13th year in a row, this 2,700-year-old Sicilian city is playing host to a Specialization Course in International Criminal Law for Young Penalists. A hundred practitioners and scholars from around the world are considering sessions on the theme of “The Future of International Criminal Law in the Era of Globalization.” It’s my honor to join more than 2 dozen colleagues as a faculty member.

Sessions in the initial days of this 10-day course have provoked much thought, many questions, from attendees and presenters alike. This morning and last began with a lecture from our host, M. Cherif Bassiouni, Emeritus Professor at Chicago’s DePaul Law and President of ISISC, the Siracusa-based Istituto Superiore Internazionale di Scienze Criminali/International Institute of Higher Studies in Criminal Sciences. He voiced concern for civilian victims of armed conflict,  and sounded concern that international criminal law may be too fragmented. With so many legal regimes and institutions at play, he said, what vans1is called a system of international criminal justice has troubling working in fact like a system. This in turn may weaken the normative core common to these enterprises. Exploring these issues yesterday were, as depicted above, Larissa van den Herik, Elies van Sliedregt, and Beth Van Schaack.

Today William A. Schabas and I offered our thoughts. Among many other points, Bill delved deeper into the character of our global society, citing Harvard Psychologist Steven Pinker’s 2011 book, The Better Angels of Our Nature: Why Violence Has Declined. Meanwhile, I highlighted some positive effects that the multiplicity of regimes and institutions may have. To name 2:

► As demonstrated in external responses to the United States’ 2002 establishment of an indefinite detention center at its military base at Guantánamo Bay, Cuba, the presence of many sites for adjudication or other challenge to a state’s practice may compel a state to adjust; in contrast, if there is only one such legal regime or institution, a state more easily may circumvent its strictures. (A notable aside: back in D.C., President Barack Obama is slated to talk about GTMO in a policy address this Thursday afternoon.)

► As demonstrated by the fits-and-starts history of international criminal justice, it seems unlikely that policymakers will design a perfect institution on the 1st try. Inspired by U.S. Supreme Court Justice Louis Brandeis’ description of experimentation within the “laboratory” of the subnational state as “one of the happy incidents of the federal system,” I observed that simultaneous operation of multiple institutions might make it easier for each institution to learn, and adjust, from the lessons of the others.

The sessions continued with a fascinating exploration of commissions of inquiry, with speakers including 3 experts who’ve served on such commissions, Christine Chinkin, Serge Brammertz, and Philippe Kirsch. Up tomorrow is a survey of tribunals other than the International Criminal Court. Then more as the week goes by…not to mention much opportunity to enjoy the beauty of this ancient city.sunset

2 P-5 states among scores seeking referral of Syria to International Criminal Court

France and the United Kingdom were among the 57 states who today sent a letter asking the U.N.  Security Council to refer the situation in Syria to the International Criminal Court. The 3 other permanent members of the Council, China, Russia, and the United States, were not signatories.

Of note given last week’s post, this letter, initiated by Switzerland and available in full here, contains language that implies a request for a more robust resolution than those previously approved for Darfur and Libya. Specifically, it asks:

  • For a referral “without exceptions and irrespective of alleged perpetrators,” phrasing that may be inferred as an argument against any ex ante grant of immunity; and
  • For “the Council to fully commit the necessary resources,” the last word often a synonym for monetary, as well as other, support for any ICC efforts that would ensue.

States urge Council to refer Syria to ICC

Flag_of_Syria.svgWith the death toll in Syria exceeding 60,000 persons, and as fighting there nears the 2-year mark, some U.N. member states have joined calls for a Security Council referral of the situation to International Criminal Court.

The latest call came in a joint letter that the foreign ministers of Austria, Ireland, Slovenia, and Denmark sent to the Council. Their statement, “Time to refer Syria crisis to ICC,” was published at today. Excerpts:

‘As we know from the work of the U.N. Commission of Inquiry on Syria, horrendous crimes have already been committed during the conflict in Syria, but there have been no consequences for the perpetrators. It is precisely for situations like this that the international community established the permanent International Criminal Court (ICC) ten years ago. This independent judicial body can provide justice when a state is unable or unwilling to prosecute the most terrible crimes. Since Syria is not a party to the ICC Statute, jurisdiction of the Court requires a decision of the U.N. Security Council. In view of the grave concerns mentioned above, and the lack of prosecution in Syria, we call on the U.N. Security Council to urgently refer the situation in Syria to the ICC.’

They noted that their initiative joined the calls of others. They cited U.N. High Commissioner for Human Rights Navi Pillay, and further dovetailed with “Conclusions of the European Union Foreign Affairs Council on December 10, 2012 and the Swiss initiative at the United Nations,” and LeMonde reports that more than 53 unnamed countries support such a referral. The statement of the 4 diplomats continued:

‘[A] referral to the ICC would make clear to every fighter on all sides of the conflict that the gravest crimes will eventually be punished. We owe this not only to the victims and their families, but also to future generations of Syrians who want to live in a free state founded on the principles of peace and justice. And we owe it to the future of humankind: After thousands of years of sometimes gruesome history, human civilization must no longer accept impunity for the most atrocious crimes.’

Absent from their letter was a call for full Council support; specifically, as discussed here and here (pp. 25-46), funding and other resources omitted in prior referrals on Darfur and Libya.

Judicial Parsing of “the Law of Nations” Makes Voyage into Maritime Drug Case

Colon_PanamaA phrase plumbed in myriad opinions on the Alien Tort Statute now has surfaced in a criminal case. The phrase is “the law of nations,” a term favored in early American legal instruments. The question is this:

May the United States prosecute persons with no U.S. ties for trafficking in cocaine found on a ship in another country’s territorial waters, absent evidence that the ship either sailed the high seas or was destined for the United States?

No, answered the U.S. Court of Appeals for the 11th Circuit in United States v. Bellaizac-Hurtado (Nov. 6, 2012).

Defendants  had been charged under the Maritime Drug Law Enforcement Act, a 1986 statute that makes it a federal crime to “knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board … a … vessel subject to the jurisdiction of the United States.” The government sought to anchor jurisdiction in Article I, § 8[10] of the Constitution, by which “Congress shall have Power … To define and punish … Offences against the Law of Nations.”

Judge William H. Pryor’s opinion for the panel reasoned that “although the Supreme Court has never held that the ‘law of nations’ is synonymous with ‘customary international law,’ its decision in Sosa v. Alvarez-Machain (2004) confirms that it is.” The appellate panel proceeded to rule – reversing the court below – that Congress cannot rely on the Offences Clause except to proscribe conduct that violates customary international law. Whether viewed through the lens of the 18th or the 21st century, drug trafficking was deemed to fall below the substantive state-practice-plus-opinio-juris threshold of customary international law. Cited were sources as varied as William Blackstone and the Rome Statute of the International Criminal Court.

In a separate opinion that tracked Justice Stephen G. Breyer’s concurrence in Sosa, Judge Rosemary Barkett stressed what she termed the “jurisdictional component” of customary international law. The only principle of extraterritorial jurisdiction at play was universality, she noted; she then demonstrated that while offenses such as genocide, crimes against humanity, and war crimes are subject to universal criminal jurisdiction, drug trafficking is not. Thus Barkett concurred that the prosecution in Bellaizac-Hurtado was unconstitutional.

I found these opinions fascinating (not the least because I had grappled with the MDLEA while representing the defendant in United States v. Juda (9th Cir. 1995)). Indeed, the opinions invite an experts’ roundtable on this case of 1st impression, which seems destined for further review.

Among the many things worth further discussion:

► Whether “law of nations” in the Offences Clause ought to be construed to correspond with the 1st Judiciary Act. Drafted by many of the same men who framed the Constitution, § 9 of that 1789 Act stated: “district courts shall have … cognizance … of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

The panel in Bellaizac-Hurtado purported to follow the Supreme Court’s interpretation of that provision, known today as the Alien Tort Statute. But the panel’s method was curious. The panel analogized “law of nations” to “customary international law” alone, even as it acknowledged that the Court in Sosa never so ruled. A broader view, one that encompassed other forms of international law, such as widely ratified treaties, might have yielded a different result. (The panel determined that ratification – by the United States and 187 others among the world’s nearly 200 states – of the 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was not sufficient. It thus seemed to call into question other U.S. statutes implementing treaties that outlaw hostage-taking and other cross-border offenses. And panel’s view that because drugs still are trafficked, the wide acceptance of the U.N. treaty doesn’t constitute meaningful state practice is, well, odd.)

What is more, the panel failed to mention that the interpretation of “law of nations” in Sosa is especially demanding notwithstanding that the ATS sounds only in tort: the black-letter definition of ordinary customary international law requires only that state practice be “general and consistent,” while the Court in Sosa favored adjectives, such as “specific” and “universal,” that typically are reserved for higher-order, jus cogens norms. Application of the standard set in Sosa likely would have entrenched the panel’s construction.

► How substance and jurisdiction interrelate. The opinions show that links to the forum state matter. Some judges in the United States may find it difficult to determine the cognizability of an extraterritorial wrong without considering the effects, if any, on the United States. This was true not only in Bellaizac-Hurtado, but also in Sosa, and it deserves further study.

► Whether the Offences Clause was meant to receive an originalist reading. Judge Pryor’s opinion dwells on circa-1780s understandings of terms like “universal” and “law of nations.” Yet this may not be the only relevant time frame, as the opinion’s citations to articles by J. Andrew Kent, Charles D. Siegal, and Beth Stephens underline. Not only does international law prefer an evolutionary approach, but the Constitution’s framers also may have understood, as Siegal put it, “that the list of international law offenses would expand with time.” Meriting discussion is the proper navigation of these interpretive cross-currents.

► What consequences flow from the finding of unconstitutionality. Though the fact pattern seems not to have arisen before in an appellate court, it does seem capable of repetition given the United States’ penchant for overseas policing. Consider the panel’s recitation of facts, which begins:

‘During a routine patrol of Panamanian waters in 2010, the United States Coast Guard observed a wooden fishing vessel ….’

(credit for photo made in Panamanian territorial waters off Colón, the country’s 2d largest city) Should the holding in Bellaizac-Hurtado stand, U.S. prosecutions could not go forward even with the foreign state’s consent. Perhaps rationales for such “routine” deployments of U.S. agents also would be implicated.

This is a judicial voyage worth charting.