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On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) decided to authorize the prosecutor to commence a proprio motu investigation into the alleged war crimes and crimes against humanity committed during the Afghanistan War since 2003. This decision is the first case where the requirements for the authorization of an investigation under Article 15(4) of the ICC Rome Statute (Statute) were tested on appeal. The case lays down a marker as to how the ICC sees the division of roles between the Pre-Trial Chamber and the Office of the Prosecutor. The Appeals Chamber proved willing to give the prosecutor broad discretion at the investigation stage. Without limiting principles, this approach may eventually expand the role of the Court beyond what the Statute permits.
International Decisions: Edited by Olabisi D. Akinkugbe
On June 17, 2021, the United States Supreme Court reversed and remanded a suit filed against Nestlé USA and Cargill under the Alien Tort Statute (ATS) for lack of jurisdiction. This case has already garnered attention over the nature of the dispute (child slaves in Africa), the Supreme Court's treatment of jurisdiction under the ATS, and the finding shared by five of the nine Supreme Court justices that domestic corporations can potentially be sued under the ATS. This analysis focuses on the child slavery and global supply chain aspects of the decision.
International Decisions: Edited by Olabisi D. Akinkugbe
On October 6, 2020, the Court of Justice of the European Union (CJEU) handed down its judgment in Commission v. Hungary. It found that Hungary had violated the General Agreement on Trade in Services (GATS), as well as internal European Union law—specifically the EU Charter of Fundamental Rights (EU Charter). The case arose out of Hungary's 2017 amendment to its higher education law. The amendment imposed two novel requirements on foreign universities operating in Hungary. It barred any non-EU university from operating unless its country of origin concluded a specific enabling treaty with Hungary. Moreover, it required that the foreign university actually provide educational services in its country of origin. While framed in general terms, it is hard to avoid the conclusion that the 2017 amendment was aimed at ending the operations of the Central European University (CEU) in Hungary.
On February 6, 2020, the Inter-American Court of Human Rights (Court) declared in Lhaka Honhat Association v. Argentina that Argentina violated Indigenous groups’ rights to communal property, a healthy environment, cultural identity, food, and water. For the first time in a contentious case, the Court analyzed these rights autonomously based on Article 26 of the American Convention on Human Rights (ACHR) and ordered specific restitution measures, including actions to provide access to adequate food and water, and the recovery of forest resources and Indigenous culture. The decision marks a significant milestone for protecting Indigenous peoples’ rights and expanding the autonomous rights to a healthy environment, water, and food, which are now directly justiciable under the Inter-American human rights system.
International Decisions: Edited By Harlan Grant Cohen
The judgment in State of the Netherlands v. Urgenda Foundation marks one of the first successful challenges to climate change policy based on a human rights treaty. In this case, the Dutch Supreme Court upheld the lower court's opinion that the Netherlands has a positive obligation under the European Convention on Human Rights (ECHR) to take reasonable and suitable measures for the prevention of climate change. Although the Supreme Court recognized that climate change is a consequence of collective human activities that cannot be solved by one state on its own, it held that the Netherlands is individually responsible for failing to do its part to counter the danger of climate change, which, as the Court affirmed, inhibits enjoyment of ECHR rights. In reaching that conclusion, the Supreme Court determined the exact level of greenhouse gas (GHG) emissions reduction that the Netherlands is required to meet to comply with its ECHR obligation, specifically, a 25 percent reduction compared to its 1990 level by the end of 2020.
This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of “zeroing”; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate Body decisions finding, inter alia, that zeroing was permissible under a weighted average-to-transaction (W-T) methodology. This departure is remarkable, not just because it runs counter to prior jurisprudence, but also for the reasoning supporting it and the circumstances in which it occurred. Indeed, the Panel Report was issued in the midst of a crisis of the WTO dispute settlement system arising from the United States’ decision to block the reappointment of Appellate Body members. The United States justified this action, which eventually resulted in the Appellate Body losing its quorum to hear new appeals on December 10, 2019, on the basis of complaints, among others, that the Appellate Body had championed an approach to precedent that the United States found incompatible with the intended role of dispute settlement within the WTO. While members worked feverishly to formulate a compromise that might respond to the United States’ criticisms and soften the effect of the Appellate Body's approach, the Panel suggested its own. Thus, it found room to depart from prior precedent (which the United States argued had been wrongly decided) while paying lip service to the Appellate Body.
The judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) announced on November 19, 2019 in response to a preliminary reference from the Polish Supreme Court is of fundamental importance for the independence of courts and judges in EU countries, establishing a pillar on which subsequent CJEU decisions have been based. The CJEU concluded that a national court is not an independent and impartial tribunal within the meaning of the European Union (EU) law where the objective circumstances in which that court was formed, its characteristics, and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external interference. In particular, a court may cease to be seen as independent or impartial when it appears to be under the direct or indirect influence of the legislature and/or the executive, or where doubts emerge about their neutrality with respect to the interests before them. Such circumstances threaten the trust that justice in a democratic society must inspire in subjects of the law.
The First Liberian Civil War (1989–1996), in which Charles Taylor's National Patriotic Front of Liberia (NPFL) waged an ultimately successful military campaign to depose President Samuel Doe, was characterized by widespread atrocities. During this period, Agnes Reeves Taylor, known as “The Mother of the Revolution” and at the time Charles Taylor's wife, allegedly committed multiple acts of torture in her capacity as a high-ranking member of the NPFL. After moving to the United Kingdom, Agnes Taylor was charged in 2017 with seven counts of torture and one of conspiracy to commit torture under Section 134 of the UK Criminal Justice Act 1988 (CJA), which domesticates aspects of the UN Convention Against Torture 1984 (CAT) and asserts universal jurisdiction over torture. During the prosecution, a question over a key definitional element of the crime was appealed to the UK Supreme Court (Supreme Court): whether nonstate actors could be liable under the statute, which requires that torture be carried out by a “public official or person acting in an official capacity” (para. 14). The Court gave a qualified answer in the affirmative, holding that this definition includes individuals acting for a nonstate body that exercises control over territory and carries out governmental functions in this territory. As the first apex court decision extending liability for torture to de facto authorities, the Supreme Court decision is likely to have significant jurisprudential influence well beyond the United Kingdom.
Decolonization and its quite valid discontents lay at the center of this advisory opinion regarding the territory and populations of islands located in the Indian Ocean. Answering questions posed by the UN General Assembly, the International Court of Justice (ICJ or Court) concluded that because the Chagos Archipelago was 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. Nearly unanimous—the sole dissenter on the merits was Judge Joan E. Donoghue of the United States—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. It did so in a manner that implicated the ICJ's role as the judicial organ of the United Nations, in whose General Assembly and other political bodies the next episodes in the Chagos controversy seem destined to unfold.
On April 8, 2016, the Egyptian government announced the signing of a “Convention of Demarcation of the Maritime Border” with Saudi Arabia (Convention). Under the Convention, the Red Sea Islands of Tiran and Sanafir lay in Saudi territory. The move was perceived by foreign and domestic observers as the abandonment by Egypt of a long-held territorial and maritime claim in exchange for a loan from Saudi Arabia, and it was challenged before the Egyptian courts. On January 16, 2017, the Egyptian Supreme Administrative Court rendered a judgment annulling the act of cession of the islands on the basis of the Egyptian people's entitlement over them (Judgment). The Judgment triggered a domestic judicial saga, which only ended in 2018. Aside from the intriguing political dimensions of this incident, the Judgment, while interpreting the Egyptian Constitution of 2014, sheds light on some fundamental aspects of international law, namely: the identity of the “holder” of sovereignty and its relations with the “delegatee,” i.e., the government; the contribution of human rights as an analytical frame for this issue; and the validity of a treaty concluded in violation of a state's treaty-making powers, a question for which there is limited practice.
The CJEU held that the United Kingdom of Great Britain and Northern Ireland (UK) is allowed to unilaterally revoke the notification of its intention to withdraw from the European Union (EU) as long as the revocation is submitted in writing to the European Council before the UK's withdrawal takes effect, and as long as the revocation is “unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state, and that revocation brings the withdrawal procedure to an end” (para. 74).
In Jam v. International Finance Corp., the U.S. Supreme Court held that the International Organizations Immunities Act of 1945 (IOIA) affords international organizations (IOs) the same immunity from suit in U.S. courts that foreign governments currently enjoy under the Foreign Sovereign Immunities Act of 1976 (FSIA), which codifies the restrictive theory of foreign sovereign immunity. The International Finance Corporation (IFC) had argued that the IOIA, which grants international organizations the “‘same immunity’ from suit … ‘as is enjoyed by foreign governments’” (p. 15), should be understood to provide international organizations with absolute immunity, which it argued foreign governments enjoyed prior to the United States’ explicit adoption of the restrictive theory in 1952. Under the restrictive theory, a foreign state is immune from suit for its sovereign acts (acta jure imperii), but not for its commercial acts (acta jure gestionis). By interpreting language in the IOIA as granting the “same immunity” to international organizations as foreign governments enjoy at the time the suit is filed, the Supreme Court aligned the regime for IO immunity with that of foreign state immunity, except in cases where the IO's founding charter provides a different rule or where the executive branch has explicitly limited immunity. It remains to be seen what IO activities are deemed “commercial” under this regime and what types of transactions are found to have a sufficient nexus to the United States to fall within the FSIA's commercial-activity exception.