Thursday, September 29, 2011

Landmark Congo Decision May Hinder Enforcement of Arbitral Awards in Hong Kong Against Sovereign States

It was recently reported that the Hong Kong Court of Final Appeal handed down a controversial judgment holding that the Democratic Republic of Congo (DRC) enjoyed an absolute right of immunity, despite what appeared to be an express waiver of immunity in the agreements signed by the DRC (click here for the full story).

SNR Denton reports the following background information: “Post 1997, Hong Kong has been in something of a quandary with regard to the issue of sovereign state immunity. On the one hand, the pre-1997 Common Law in Hong Kong acknowledged the doctrine of restrictive state immunity, that is, that a state could be sued when it has engaged in purely commercial transactions. On the other hand, the position in the People's Republic of China [PRC] has been consistent and unequivocal: Sovereign states enjoy absolute immunity from domestic courts of another sovereign state, the only exception being where the defendant state waives immunity before the forum state.”

On August 26, 2011, this dilemma came to the fore in the case Democratic Republic of the Congo v. FG Hemisphere Associates, which involves an attempt by US-based investment fund FG Hemisphere Associates to enforce arbitral awards against Hong Kong-based assets of the DRC. In June, the Hong Kong Court of Final Appeal, in a controversial judgment overturning the Court of Appeal, came to the view that the DRC enjoyed an absolute right of immunity, notwithstanding what appeared to be an express waiver of immunity in the agreements signed by the DRC. The Court then referred the matter to the Standing Committee of the National People’s Congress, which affirmed the Court’s conclusion: the DRC enjoys absolute immunity from the domestic courts of Hong Kong, the only exception being where the DRC waives immunity.

The challenges that this decision poses to investors applies not only when dealing with states holding assets in Hong Kong, but also when assets are being held anywhere in mainland China. Because the Standing Committee of the National People’s Congress affirmed the CFA’s ruling, it would presumably similarly instruct courts located anywhere on mainland China to dismiss suits brought against sovereign states for the enforcement of arbitral awards when such states protest the jurisdiction of the courts of the PRC, regardless of what agreements the states have signed.

This is negative news for companies doing business with states (or state agencies). It likely means states could protect all of their funds and other assets in Hong Kong and mainland China and then sign whatever waivers as to sovereign immunity they wish, but when it comes to enforcing judgments awarded against them, simply not pay out refuse the jurisdiction of the courts of mainland China and Hong Kong at the hour of enforcement. The courts of China and Hong Kong will then dismiss the matters, given their policy of absolute sovereign immunity. Investors should be aware that, if a state does not pay out its judgment willingly, going to Hong Kong or mainland China for enforcement will bear little fruit.

The DRC is not a state party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which requires courts of contracting states to recognize and enforce arbitral awards made in other contracting states. Yet even if it were, it appears that the outcome of Democratic Republic of the Congo v. FG Hemisphere Associates would not have been different, since the Standing Committee of the National People’s Congress based its decision on a public policy view recognizing absolute sovereign immunity, the only exception being when a defendant state waives immunity before a foreign state’s courts, and under Art. 5(2)(b) of the New York Convention, a state my refuse to enforce a foreign arbitral award if doing so contravenes its public policy.

For these reasons, this decision should raise concerns for companies doing business with states holding assets in Hong Kong and mainland China. Should such companies ever wish to enforce a judgment against such assets, they will face the same challenges that FG Hemisphere Associates confronted.

Sunday, September 4, 2011

Turkey Announces Plan to Challenge Israel’s Gaza Blockade at the International Court of Justice

Turkey has recently announced its plan to challenge Israel’s blockade of Gaza at the International Court of Justice (ICJ). A forum that is potentially open to all states, the ICJ is the widest reaching court in the international arena. Yet will it have jurisdiction to hear Turkey’s case?
Turkey has not yet announced the claims that it will bring against Israel. Presumably, it will claim an illegal use of force on the raid of Turkey’s aid flotilla last year and for Israeli state responsibility for the deaths of nine foreign nationals (eight Turks and one American) that resulted from the raid. It is unlikely that Turkey could bring suit on a law of the sea theory, as it does not share territorial seas with southern Israel, where the naval blockade is imposed. Assuming Turkey challenged the legality of the flotilla raid and claimed Israeli state responsibility for the deaths, would the ICJ have jurisdiction?

Under the UN Charter, all UN members are ipso facto parties to the Statute of the ICJ and agree to comply with the decision of the ICJ in any case to which they are parties (art. 93 UN Charter). The fact that Israel is a UN member does not however mean that the ICJ has jurisdiction to hear any claim brought against Israel by any other UN member state. Before the ICJ is able to adjudicate a particular contentious dispute, its jurisdiction must be established through the consent of all of the parties to the conflict. This consent can take any one of the following forms:
  • Ad hoc basis jurisdiction. The parties to a conflict accept ICJ jurisdiction for the particular case;
  • Compromissory clause. The parties enter into a treaty providing for the settlement of disputes as to the application or interpretation of the treaty by the ICJ;
  • ICJ compulsory jurisdiction. The parties give general agreement to accept the ICJ’s jurisdiction for a particular category of cases in relation to other nations that have done the same; or
  • Carryover jurisdiction. Jurisdiction is granted from the Permanent Court of International Justice over certain disputes and this jurisdiction is carried over to the ICJ.
It is unlikely that the ICJ’s jurisdiction will be established under any of these forms. With respect to the Court’s ad hoc basis jurisdiction, Israel will most likely refuse the Court’s jurisdiction, since Israel has already stated that it considers the UN report written by Geoffrey Palmer and Alvaro Uribe to be the definitive statement on the legality of its naval blockade, and its use of force to have been necessary as a security measure for its self defense. Because there is no treaty that would grant jurisdiction to the ICJ for this particular case (the Gaza blockade is a unilateral act on the part of Israel that is not the subject any treaty), no compromissory clause applies. Moreover, Israel has not accepted the ICJ’s compulsory jurisdiction, and carryover jurisdiction from the Permanent Court of International Justice (PICJ) is inapplicable to Israel, which did not exist at the time of the PICJ.

Therefore, the biggest challenge that Turkey will face in bringing suit against Israel is not proving that the naval blockade or use of force by Israel violated international law, but rather, establishing the Court’s jurisdiction to hear its claims against Israel, if Israel does not consent to the same.

For more on international law, the legality of the use of force and state responsibility, see Principles of International Law.

Saturday, May 14, 2011

Responsabilidad extracontractual de los principales por daños a terceros en el Derecho norteamericano

Estos extractos vienen del capítulo 2 (Agencia) de mi libro, Introduction to American Business Organizations (Introducción a las organizaciones empresariales estadounidenses), que está siendo traducido al español y será publicado en otoño de este año 2011 por la Editorial Marcial Pons en Madrid. Para recibir noticias sobre el progreso del libro, me pueden contactar a jmb111[at]columbia[punto]edu.

1. Empleados frente a contratistas independientes

Los términos usados en un contrato para describir la relación entre un propietario y un prestador de servicios no son dispositivos para determinar si existe una relación de agencia. El elemento principal que vienen considerando los tribunales radica en el nivel de control del propietario sobre una compañía. Cuanto más control se ejerza sobre una compañía y sus prestadores de servicios, hay una mayor probabilidad de que exista una relación de agencia.

De este modo, el principal no puede liberarse de la responsabilidad de reclamaciones por daños de prestadores de servicios a terceros sólo por el hecho de que el prestador de servicio sea calificado como “contratista independiente” en el contrato. El propietario puede ser responsable frente a terceros por negligencia del prestador de servicios. En el caso Humble Oil & Refining Co. v. Martin (Texas 1949), el demandante sufrió daños causados por un vehículo descontrolado en una estación de servicio gestionada por un operador prestador de servicios. Aunque el operador fue calificado como “contratista” en el contrato con el propietario, se consideró que existía una relación de agencia entre el propietario y el operador debido al control ejercido por el propietario sobre la gestión ordinaria del operador. En este caso, el propietario pagaba alguno de los gastos del operador, fijaba el horario de apertura de la estación de servicio y participaba en el proceso de toma de decisiones.

Esta regla se aplica incluso en las relaciones entre franquiciador y franquiciado. Según se definió en el caso Murphy v. Holiday Inns, Inc. (Va. 1975), la franquicia consiste en un sistema de distribución selectiva de bienes y servicios bajo una marca a través de establecimientos propiedad de empresarios independientes denominados “franquiciados”. Cuando el franquiciador ejerce suficiente control sobre las actividades del franquiciado, surge una relación de agencia. En el caso, Miller v. McDonald’s Corp. (Or. App. 1997), por ejemplo, el actor sufrió daños en su dentadura al comerse una hamburguesa por lo que demandó al franquiciador. La sentencia sumaria (summary judgment) inicial dictada en favor del franquiciador fue desestimada por el tribunal al entender que había evidencia suficiente para acreditar la existencia de una agencia ya que el franquiciador tenía el derecho a ejercer el control sobre las actividades del franquiciado. De este modo, el franquiciador fue considerado responsable de la negligencia del franquiciado que operaba el restaurante.

Por otro lado, en el caso Hoover v. Sun Oil Co. (Del. 1965) se entendió que no existía una relación de agencia. Aquí, el actor demandó al franquiciador y operador de una estación de servicio cuando sufrió daños por un incendio en la estación de servicio. El tribunal consideró que el franquiciador no ejercía suficiente control sobre el operador como para entender que existía una relación de agencia, por lo que le liberó de la responsabilidad derivada de la negligencia del franquiciado. Por contra, en este caso, el franquiciado fue tratado como un contratista independiente con control sobre sus propias decisiones y políticas, tales como, horarios de apertura del establecimiento y su limpieza e higiene. Aun cuando los productos Sun se vendía en la estación de servicio, eso no era suficiente para establecer una relación de agencia.

2. Responsabilidad extracontractual por daños causados por contratistas independientes

Generalmente, no existe relación de agencia respecto de actos causados por contratistas independientes. Sin embargo, existen ciertas excepciones, incluyendo las siguientes:

- Cuando el propietario de un terreno controla el modo en que el contratista independiente realiza sus trabajos de construcción.
- Cuando el contratista independiente no es competente.
- Cuando se desarrolla una actividad especialmente peligrosa.
El caso de Majestic Realty Associates, Inc. v. Toti Contracting Co. (N.J. 1959) claramente demuestra esta última excepción. En este caso, el demandado fue contratado por el Ayuntamiento de Paterson (City of Paterson) para demoler un edificio. En el curso de los trabajos, el demandado causó daños en el edificio del actor. El actor demandó al Ayuntamiento de Paterson bajo el argumento de la teoría de la agencia alegando que el Ayuntamiento era el principal del demandado. El Ayuntamiento se defendió alegando que el demandado era un contratista independiente y que por tanto el Ayuntamiento no debía ser responsable. El tribunal consideró que aunque el principal normalmente no es responsable de la negligencia del contratista independiente, en este caso el Ayuntamiento debía responder porque el contratista-demandado estaba desarrollando una actividad de por sí peligrosa: la demolición de un edificio de una calle concurrida.

3. Límite de las funciones (Scope of employment)

Para que el principal responda de los actos de su agente será necesario que el agente actúe dentro de los límites o marco de sus funciones o actividades. Anteriormente, esto significaba que el empleado o agente debía desarrollar sus actividades en aras al cumplimiento del propósito del principal. No obstante, una definición más flexible de este principio ha sido recientemente acuñada por los tribunales. De este modo, ahora se incluyen cualesquiera actos del agente en desarrollo de cualquier actividad que previsiblemente pueda realizar en aras al cumplimiento del propósito del principal, independientemente de si dicha actividad realmente sirve para dicho propósito.

Un tribunal federal en el caso Ira S. Bushey & Sons, Inc. v. United States (2d Cir. 1968) adoptó una aproximación especialmente liberal a este cuestión. En este caso, un marinero que trabajaba para los Estados Unidos volvía a su barco borracho y provocó el hundimiento de la embarcación al abrir erróneamente las compuertas, causando daños en el dique propiedad del actor. Aunque el marinero, un agente de los Estados Unidos, no estaba en modo alguno contribuyendo al cumplimiento del propósito de su empleador, éste fue considerado responsable debido a que era previsible que un marinero que se emborrachara pudiera causar tal incidente. De este modo, el tribunal consideró que el marinero se encontraba dentro del marco de sus funciones o actividades laborales .

Si un actor quiere que el demandado sea declarado responsable de los actos de su empleado, el actor, a quien le corresponde la carga de la prueba, debe probar que el empleado actuaba dentro del marco de sus funciones laborales. En ocasiones esto puede llevar a resultados inesperados. Por ejemplo, en el caso Manning v. Grimsley (1st Cir. 1981), el actor demandó a un jugador de béisbol y a su empleador por los daños causados por el lanzamiento de una pelota de béisbol después de que el actor increpara con insultos al jugador. El tribunal concluyó que si se probaba que el demandado lanzó la pelota al actor como reacción a los insultos sobre sus capacidades como jugador, entonces el empleador podía ser declarado responsable. No obstante, si el lanzamiento de la pelota no fue provocado por los insultos, entonces el empleador no podría ser responsable de los actos del jugador, no provocados, ya que se trataría de actos imprevistos o fuera de su alcance. En el caso concreto, se demostró que el demandado lanzó la pelota como reacción a la provocación del actor. Por ejemplo, el demandado miraba a los increpadores y no sólo a las gradas.

4. Reclamaciones legales

Para poder demandar a un principal por responsabilidad extracontractual por daños causados por un tercero, el actor debe demostrar que existe una relación de agencia entre el demandado y el agente. A tal efecto, el actor debe probar que el demandado-principal consintió que el agente actuara por su cuenta y que el agente aceptó actuar por cuenta del principal.

En el caso Arguello v. Conoco, Inc. (5th Cir. 2000), unos grupos minoritarios demandaron por prácticas discriminatorias en los establecimientos del demandado en violación de la ley federal. El tribunal consideró que no existía relación de agencia entre el demandado y los establecimientos bajo la marca Conoco en la medida en que los acuerdos por los que se regulaba la venta de gasolina Conoco en los establecimientos claramente establecían que dichos establecimientos eran independientes sin sujeción a relación de agencia. Sin embargo, en el caso de los establecimientos propios de Conoco los empleados actuaban como agentes del demandado, por lo que en dichos casos sí existía relación de agencia y, por ende, respecto a éstos, el tribunal falló en favor de los actores.

Tuesday, May 3, 2011

Natural Law Theory and Its Implications on Universal Human Rights

Until quite modern times, the law was infused with the idea that some principles could not only receive, but also merit, approval or disapproval, and that certain responses could be more just, ordinate, or appropriate than others. This concept is rooted as far back as the ancient Greek philosophers. Aristotle stated that “the aim of education is to make the pupil like and dislike what he ought.” The concept was infused in the philosophical treatises of writers as distinct as Augustine in the West and Avicenna in the East, all who referred back to Aristotle in formulating systemic theological treatises that sought to unveil systems of absolute truth. Like those after them, they discovered through human reason a law universal to all cultures and written on the heart of man. Among the values inherent in this universal law are beneficence, justice, good faith and veracity, mercy and magnanimity. Among the precepts of the universal law are commandments to love one’s neighbor as oneself and injunctions against murder, theft, and bearing of false witness.

These precepts are available to man not only through God’s special revelations given to prophets throughout history, but also through man’s capacity to think and reason. Where men of reason and virtue are permitted to think freely and without restraint or coercion, they inevitably recognize these laws. They also recognize that man is born free, with a natural right to life and liberty.

A. The History of England as an Illustration

The history of England is in this respect illustrative. Men of conscience struggled over a millennium to secure man’s basic inherent rights against kings that historically refused to acknowledge any law higher than themselves. The people’s first victory was the Magna Carta of 1215, establishing citizens’ rights, followed by the Petition of Right by 1628, a defense of the supremacy of the common law over the king, the Glorious Revolution, the English Bill of Rights, and ultimately the abolition of slavery in England. One finds natural law thinking reiterated throughout the great thinkers who shaped and justified these events, from de Bracton to Coke, from Milton to Locke, and even Wilberforce, all who vindicated the idea that the law was above any man, including the king, and that man had certain inherent rights that no ruler could infringe.

B. That the Principles Set Forth in the English Revolution Are Universal to Mankind

1. The United States and France

One cannot understand the American Revolution in general, and the United States Declaration of Independence, Constitution, and Bill of Rights in particular, without understanding the English Revolution. The American Revolution was in many ways the embodiment of the principles set forth in the Glorious Revolution of England. One further cannot understand the French Revolution and the French Declaration of the Rights of Man and of the Citizen without understanding the revolutions in England and the United States that preceded it. While each revolution had its own particular context and placed a different degree of weight on the place of faith, tradition, and reason in defining new constitutions and institutions, each one developed a commitment to the fundamental and natural rights of man, such as his rights to liberty, property, expression, association, and assembly.

2. The International Community at Large

a) Instruments of the UN Prove that Rights are Universal

It would be mistaken to state that the rights established by these revolutions are limited to Western nations. Rather, these rights were instituted and embodied in the virtually universally adopted Charter of the United Nations and its related instruments. On June 26, 1945, the international community convened in San Francisco and signed the CUN, the Preamble of which lists as one of the UN’s purposes the affirmation of fundamental human rights and human dignity. The CUN has been adhered to by virtually all states; the few remaining non-member states have acquiesced in the principles established in the CUN.

The fundamental human rights and human dignity laid out in the CUN are further outlined in the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948 as an elaboration of the human rights provisions of the UN Charter. The UDHR has been nearly universally adopted, passing at the time of its promulgation with 48 votes in favor, zero against, and 8 abstentions. Some sources consider the UDHR to be a nonbinding resolution that set forth a “common standard of achievement for all peoples and all nations” (Preamble UDHR); others view it as an elaboration of the human rights provisions of the UN Charter, and thus claim that it is binding through the Charter.

Regardless of whether the UDHR is binding, a series of more recent international treaties convert the provisions of the UDHR into binding treaty provisions. Among these are the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966). The majority of states in the international community are parties to the ICCPR, which currently has 167 states party, as well as to the ICESCR, which currently has 160 states party. States parties to the ICCPR undertake to protect the wide range of civil and political rights, including a right to life (art. 6 ICCPR), prohibitions on torture (art. 7 ICCPR) and slavery (art. 8 ICCPR), prohibitions on arbitrary arrest or detention (art. 9.1 ICCPR), a right to trial within a reasonable time of arrest or detainment (art. 9.3 ICCPR) and to freedom of thought, conscience and religion (art. 18 ICCPR), as well as freedom of expression (art. 19 ICCPR). Many of these rights reiterate those vindicated in the English, American, and French revolutions, thus demonstrating that they are not limited to Western nations; rather, as nations across Asia, Africa, and the Middle East have recognized and committed to these rights, they have been proven to be universally applicable.

Although countries in the Middle East have signed on to these Covenants, many scholars maintain that the rights embodied therein are western inventions that are incompatible with Arab or Muslim society. Such scholars point to human rights track records in the Middle East as evidence of this: in most countries in the Middle East, with a few exceptions such as Lebanon, political parties not belonging to the governing elite are banned, freedom of expression is heavily restricted, arbitrary arrests and detentions are the norm, and human rights are categorically violated. Scholars thus argue that the adhesion of Middle Eastern states to the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights is a mere publicity stunt that has no real bearing as to whether the rights contained therein are appropriate or even compatible with Middle Eastern society.
b) Arab Spring Proves that Universal Rights Belong to the Arab Peoples As Well

Yet events today in the Middle East prove otherwise. In the Arab Spring that we see spreading across the Middle East, from Morocco to Bahrain, from Yemen to Syria, the peoples of the Middle East have proven that they too wish to enjoy the same basic human rights that have been in place in the West for centuries. They have demonstrated their aspiration to see the implementation of rights and liberties that heretofore were limited to meaningless treaties and other obligations that were signed but ignored by governing authorities. They too have shown that the right to life, liberty, expression, freedom of belief, association, a free press, and a right to choose one’s own government are not limited to the Christian West, but rather, are universal to mankind. They have shown through their blood and sacrifices that man is better and more noble as a martyr than as an imprisoned animal lacking dignity. They have demonstrated the nobility of the human spirit, what it seeks and strives for, and how it yearns with an unquenchable thirst for the freedom that is naturally granted to every human being by his Creator.

Tuesday, April 26, 2011

The Principle of Nonintervention within the Context of the Uprisings across the Middle East

A. Introduction
One of the arguments raised by Muammar Gaddafi in the recent Libyan revolt is that the conflict Libya faces is a purely domestic conflict against local and foreign criminals seeking to destabilize Libya. He holds that under the historic principle of nonintervention, foreign nations have no right to intervene in the affairs of Libya. This argument has been reiterated by leaders of other nations in the Middle East. Ali Abdullah Saleh of Yemen chastised President Barack Obama for intervening in the affairs of Arab nations, where he stated:

Every day we hear a statement from Obama saying 'Egypt you can't do this, Tunisia don't do that. What do you have to do with Egypt? Or with Oman? ... Are you president of the United States, or president of the world? (Mar. 1, 2011, Reuters, available at

Does the principle of nonintervention shield Middle Eastern leaders when they resort to violence in quashing domestic unrest and protests? Do the arguments of Gaddafi and other leaders hold sway?

B. The Principle of Nonintervention
As discussed in Malcolm Shaw’s standard reference work International Law, it is a principle of customary international law that states and international organizations may not interfere or intervene in matters within the domestic jurisdiction of other states (see § 5 of Chapter 20). Intervention is “prohibited where it bears upon matters in which each state is permitted to decide freely by virtue of the principle of state sovereignty” (p. 1039). This principle is enshrined in the Charter of the United Nations (CUN), which states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter” (art. 2.7 CUN).

Under this historic principle, state action with respect to purely domestic affairs have traditionally been shielded by immunity in the international arena. This has been the case even when state acts violate the rights of the state’s own people. International law historically would only apply when foreign nationals fall victims to the crimes of a state.

After World War II, however, this changed. Due to the atrocities committed in the war, the Allied Powers made a firm decision not to allow the German and Japanese authorities responsible for war crimes, including those who committed such crimes against their own citizens, to go free through the application of the principle of nonintervention, since doing so would be a miscarriage of justice. Under this exception to the principle of nonintervention, the Nuremberg International Military Tribunal and the International Military Tribunal for the Far East were established to try the war crimes of Nazi Germany and Imperial Japan, respectively.

Practice thus departed from precedent with the establishment of these military tribunals. Since then, in cases involving the most egregious crimes, international human rights law has ignored the principle of nonintervention. Under current practice, states are obliged under their human rights treaties to respect the rights of both their own citizens as well as aliens within their borders, and other states or international organizations may intervene to assure that these rights are respected if a state fails to insure them. The CUN incorporates this premise when articulating an exception to the general rule of sovereignty: the principle of nonintervention “shall not prejudice the application of enforcement measures under Chapter VII [of the Charter]” (art. 2.7 CUN).

C. Does the Principle of Non-Intervention Protect Leaders who Violently Quash Civilian Protestors?
It is thus incorrect to argue that leaders may resort to the principle of non-intervention for blanket protection of their actions during even purely civil conflicts. Muammar Gaddafi as well as other leaders in the Middle East should take the prosecutions of civil and military leaders under the International Military Tribunal, as well as its more recent counterparts, such as the International Criminal Tribunals for Rwanda and for the former Yugoslavia, the Special Court for Sierra Leone, the Human Rights Chamber for Bosnia & Herzegovina, and the International Criminal Court, among others, as warning signs that they too may be held accountable for crimes committed against their own populations.

D. The Duty of the International Community to Act
Not only may nations under international law be permitted to intervene to stop crimes committed against foreign populations by foreign governments, but also, they may under some circumstances be under an affirmative duty to do so.

Furthermore, applicable human rights instruments may require action by member states under their own commitments. For example, under the International Covenant on Civil and Political Rights (ICCPR), states parties undertake to protect the wide range of civil and political rights listed in the ICCPR, including a right to life and prohibitions on torture and slavery. The ICCPR requires states not only to agree to not violate these rights, but also to insure the rights by protecting them from other member states’ violations. It thus incorporates an affirmative duty to act.

There are many more examples. We can point to the Convention on the Prevention and Punishment of the Crime of Genocide (CPPG) (1948), which creates an affirmative duty to act. It requires not only that its 140 states parties refrain from the crime of genocide, but also that they “undertake to prevent and to punish” genocide (Art. I CPPG) and further pledge “to grant extradition in accordance with their laws and treaties in force” of persons charged with genocide (Art. VII CPPG).

E. Conclusion
We may thus conclude not only that there is a deep and inherent fallacy in invoking the largely obsolete principle of non-intervention in cases involving the worst crimes against civilian populations, but also, that there is a duty of third party states under international law to act to stop the commission of such crimes.

Wednesday, March 2, 2011

The Libyan Uprising and the Responsibility of the International Community to Uphold International Humanitarian Law

A. Introduction: the Libyan Uprising and International Law

It has been two weeks since the uprising of the people in Libya led to the seizure of several Western Libyan cities by rebels, the defection of various diplomats and military officers from Gaddafi’s regime, and a violent military reaction that has led to over 1,000 mostly civilian casualties. There is talk by the United States, Britain, France, and NATO of enforcing a no-fly zone over Libya to prevent Gaddafi from bombing his own people. What does international humanitarian law say about the present situation in Libya and would a no-fly zone enforced by NATO contravene international law?
International humanitarian law, also known as the Law of war or the Law of armed conflict, is the set of rules regulating the conduct of war and armed hostilities. These rules restrict the means and methods of warfare and seek to limit the effects of armed conflict for humanitarian reasons by protecting civilians who are not or are no longer participating in hostilities. The protection of persons in armed conflicts is governed by the four 1949 Geneva Conventions (Geneva Convention (I) for the Wounded in the Field; Geneva Convention (II) for the Wounded, Sick and Shipwrecked at Sea; Geneva Convention (III) for the Treatment of Prisoners of War; Geneva Convention (IV) for the Protection of Civilian Persons in Time of War). Permitted weapons and methods of war are governed by the Hague Conventions of 1899 and 1907 and by their Additional Protocols. With the advent of new forms of weapons, some treaties such as the Chemical Weapons Convention (1993) have more recently been adopted.

B. The Facts
Allegations of the violent use of force by the Gaddafi regime against protestors abound in the press. Amateur videos taken with cell phones of protestors being bombarded and shot by helicopters can be found on Youtube and on Google Videos. Articles written by news services as diverse as Reuters, Agence France Presse, the AP, and Al-Hayat report over 1,000 civilian victims of the fighting. Other news sources report the defection of Libyan Air Force officers who were allegedly ordered to indiscriminately fire at civilians. Human Rights Watch reported nearly one hundred protestors killed by government forces in the first three days of the uprising.
At the same time, some States, such as Venezuela and Cuba, claim that the media reports are fabricated and aimed at undermining Gaddafi in order to facilitate an invasion and takeover of Libyan oil fields.
If the reports by Human Rights Watch and the media are true, then Gaddafi would be guilty of heinous violations of international humanitarian law—more specifically, Geneva Convention (IV) for the Protection of Civilian Persons in Time of War. Perhaps the most fundamental norm of international humanitarian law today is contained in this Convention: States may not directly target civilians in military attacks.

C. Gaddafi’s Defense
Gaddafi may try to defend himself by claiming that the protests were violent and tipped the country over the brink of civil war, whereby his resorting to the use of force was a necessary countermeasure. Such an argument would be to no avail. International humanitarian law does not cease to apply in civil conflict. Rather, article 3 of Geneva Convention (IV) for the Protection of Civilian Persons in Time of War is completely devoted to the protection of civilians in internal conflicts. The article, which is common to all four 1949 Geneva Conventions, states as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …
(c) outrages upon personal dignity, in particular humiliating and degrading treatment; …
(2) The wounded and sick shall be collected and cared for …

Because Libya is a State party to the Geneva Conventions, it is bound by these provisions, even in civil conflicts and war. Yet even if Libya had not formally accepted the Geneva Conventions, it would still be bound by them because the Conventions, universally accepted by the international community, have become a source of customary international law.

D. The Responsibility of the International Community
International law requires Libya to protect civilians not taking part in armed conflicts. But international law doesn’t stop there; it also requires the international community to ensure the respect of the Law of war, seek out and try persons alleged to have committed “grave breaches” of the Geneva Conventions (art. 146 GC IV), and punish those responsible for such breaches. If breaches of the Geneva Conventions are perpetrated against protected persons, all states have an obligation to find the perpetrators and bring them to justice.
The Fourth Convention defines grave breaches as “any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, … wilfully causing great suffering or serious injury to body or health, … and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (art. 147 GC IV). In Prosecutor v. Dusko Tadic (1999), the ICTY held that grave breaches apply not only to international conflicts, but to internal armed conflicts as well.
Nations that have committed to international humanitarian law by signing the Geneva Conventions are required to investigate grave breaches of international law committed by the Gaddafi regime and “search for persons alleged to have committed, or to have ordered to be committed [grave breaches of Geneva Convention IV and] bring such persons, regardless of their nationality, before its own courts” (art. 146 GC IV). The Geneva Conventions thus require not only the respect of international humanitarian law, but also impose the responsibility to ensure the respect of international humanitarian law and to punish those responsible for “grave breaches” thereof.

Sunday, February 27, 2011

Diplomatic Immunity and the Raymond Davis Case

There has been a great deal of controversy as to whether Raymond Davis would be liable to criminal prosecution in Pakistan for the alleged murder of two Pakistani nationals. The United States holds that diplomatic immunity applies. Former Pakistani Foreign Minister Shah Mehmood Qureshi argues that blanket immunity does not apply for the most serious crimes. Still others claim that Davis is a CIA operative and that neither partial nor absolute immunity applies. What is the law on diplomatic immunity and does it apply to Davis in this case?

A. Diplomatic Immunity: an Overview
There are 183 members of the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both Pakistan and the United States have ratified it. The VCDR grants diplomatic mission staff the privileges and immunities necessary for them to carry out their work. Article 29 provides in part: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Diplomats thus have complete immunity from criminal prosecution in their receiving states. With some exceptions outlined in article 31(1), they also enjoy immunity from civil and administrative jurisdiction in all matters that touch the diplomatic agent’s function as a diplomatic.
The law of the receiving state cannot be applied to the immune person for as long as the immunity lasts and is not waived by the sending state. Because the immunity derives from the sovereignty of the state, diplomats cannot waive immunity on their own behalf.

B. Consular Immunity: an Overview
Because consular officials do not intervene in political matters to the same extent that diplomatic agents do, they are not permitted the same degree of immunity from jurisdiction as diplomats. Their privileges and immunities are governed by the 1963 Vienna Convention on Consular Relations (VCCR).
Article 40 VCCR provides that “The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.” They are not liable to arrest or detention pending trial, “except in the case of a grave crime and pursuant to a decision by the competent judicial authority” (art. 41 VCCR). If, however, criminal proceedings are instituted against him, the consular officer “must appear before the competent authorities” and the proceedings must be conducted “in a manner which will hamper the exercise of consular functions as little as possible” (art. 41 VCCR). Consular immunity from judicial and administrative jurisdiction applies to consular officials for acts performed in the exercise of consular functions. It does not apply to civil actions arising out of a contract concluded by a consular official in which he did not contract as an agent of the sending State or to civil actions by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft (art. 43 VCCR).

C. Conclusion
Whether diplomatic immunity applies to Davis depends on his status. If he is in fact an accredited member of the US Mission’s Diplomatic staff in Pakistan, then full criminal diplomatic immunity would apply. If he is a commissioned member of the US Mission’s Consular staff, then criminal diplomatic immunity would apply, except for the most serious crimes. If he is an accredited member of neither the Diplomatic nor Consular staff, then neither form of immunity would apply.
What does all of this mean? First let me set out what diplomatic immunity does not mean. It does not mean that the immune person is exempt from the laws of his own state. If a serious crime was committed by Davis, the sending state (the US) may recall him back to the US to be prosecuted back home. In addition, it may waive his immunity and allow for him to be prosecuted by the receiving state (Pakistan) (art. 32 VCDR).
Let me further clarify what diplomatic immunity does not mean. It does not bar the receiving state (Pakistan) from ever prosecuting a diplomat; it bars prosecution against an individual only as long as he remains a diplomat. Thereafter, the individual may be prosecuted by the receiving state for crimes committed within its territory at the time he served, provided statutes of limitation do not bar prosecution.
In the present case, Pakistan will not be satisfied with prosecuting Davis after his service is due to expire or allowing him to be recalled to the US for prosecution. Perhaps partially due to the sentiments of the Pakistani people, who wish to see their government not caving in to US demands, and partially due to concerns that Davis may not be a diplomat, the Pakistani courts are moving forward in trying Davis in a case that is sure to strain a key US-Pakistani partnership in the war on terror.