The 2013 CJICL conference "Legal Tradition in a Diverse World" is taking place this weekend (18-19 May) in Cambridge. The conference will begin on Saturday morning with a keynote address by Judge Abdulqawi Yusuf of the ICJ. At lunchtime on Saturday Professor Patrick Glenn will deliver a guest lecture on the topic "The State as a Legal Tradition" and launch his new book "The Cosmopolitan State" by Oxford University Press.

Sunday morning sees a debate between Professor James Crawford and Professor Alain Pellet on the topic "Anglo-American v Continental Traditions in Advocacy at International Courts and Tribunals." The debate will be moderated by Professor Catherine Redgwell.

More than 50 papers will be presented in over a dozen panels covering a wide range of topics, including IHL, transitional justice, the teaching of law, EU law, economic development, legal procedure and critical legal studies.

The full conference programme is available here:

http://www.cjicl.org.uk/conference

Anyone wishing to attend who hasn't yet registered may sign up for the last remaining places via the CJICL conference website: www.cjicl.org.uk/conference

Those unable to attend can follow some of the conference highlights via the CJICL Blog Twitter account: https://twitter.com/CJICLBlog

Highlights of the conference will be tweeted using the hashtag #CJICL2013

We look forward to seeing many of you in Cambridge.

From 18-19 April, I attended the inaugural London International Boundaries Conference. It was a superb conference, involving excellent presentations from a variety of practitioners on technical and legal aspects of boundary delimitation. Sitting at the back of the room at one point, I was struck by the fact that the majority of the audience was made up of white men in grey suits. Boundary delimitation is a man’s world, it seemed.

A quick scan of Twitter during the conference provided some welcome news. I was very happy to read that President Obama had nominated Avril Haines as the next Legal Adviser of the State Department. If her appointment is confirmed, she will fill the vacancy created by the departure of Harold Koh, the former Legal Adviser. Koh returned to Yale Law School in January 2013 as Sterling Professor of International Law.

The full programme of the 2013 CJICL Conference "Legal Tradition in a Diverse World" has now been released and is available at www.cjicl.org.uk/conference.

Following a previous post on the Philippines/China Annex VII arbitration, this post will provide a status report for two further Annex VII arbitrations, namely Bangladesh/India and Mauritius/UK.

Bangladesh/India (Bay of Bengal Territorial and Maritime Dispute)

Initiated:          8 October 2009 by Bangladesh

Arbitrators:      

Bangladesh: Professor Thomas A. Mensah (Ghana)

India: Dr Pemmaraju Sreenivasa Rao (India)

12 February 2010 (ITLOS President): Professor Rüdiger Wolfrum (Germany)(President); Professor Ivan Shearer (UK) and Professor Tullio Treves (Italy).

Status of submissions: Bangladesh filed its Memorial May 2011; India filed a Counter-Memorial in May 2012. Bangladesh filed a Reply on 2 February 2013.

The first award of an UNCLOS Annex VII arbitral tribunal was rendered in 2006 in the Barbados/Trinidad and Tobago case. There are now four pending arbitrations under Annex VII, which raise a diverse range of issues, both substantive and procedural, and not limited to the law of the sea. Law of the sea is often viewed as niche area within public international law, and in some quarters has a reputation akin to that of EU law or WTO law, as being highly technical and somewhat dull. Nevertheless, the issues raised in the pending Annex VII arbitrations will be of interest to all public international lawyers, and the words UNCLOS or Annex VII should not act as a deterrent to reading more about these cases. Over the coming week, a series of posts will provide a status report on the four pending Annex VII arbitrations and note key dates arising in 2013/14 in that regard. Today's post will deal with the Philippines/China arbitration, following the confirmation provided today by the Department of Foreign Affairs of the Philippines that the ITLOS President has nominated an arbitrator on behalf of China. Further posts this week will provide a status update on Bangladesh/India, Mauritius/UK and Argentina/Ghana. These are exciting times for State-to-State arbitration, and not just for law of the sea enthusiasts.

This post will address the 'codification' of the US targeted killing programme and its implications for international law. The New York Times reported that prior to the November 2012 Presidential election, Obama administration officials had been working to codify the classified, amorphous and ad hoc targeted killing rules, in anticipation of the possibility of a Republican victory. Such actions signaled a reluctance on the part of the administration to leave a legacy of power of execution without defined limits. This drone 'rulebook', a formal guide to the targeted killing programme is now reportedly near completion. Just how much of its content is in line with the existing framework of international law and law of armed conflict (LOAC) standards is unknown. Notably, it exempts CIA operations in Pakistan from its constraints, allowing the controversial practice of 'signature strikes' to continue in the country.

This post examines the Justice and Security Bill, which is currently before the House of Commons having been previously passed by the House of Lords. The most important provisions of the Bill are those introducing Closed Material Procedure (‘CMP’) into general civil court trials in the High Court and Court of Appeal in England and Wales, in the Scottish Court of Session and in the Supreme Court. In essence, CMP is a body of court rules that allow evidence that is deemed damaging to national security to be presented before the court without one (or more) of the parties being allowed to see it; instead, a ‘special advocate’ is appointed to make submissions and arguments on behalf of the litigant. The rules undercut the usual elements of the right to a fair trial to an incredible extent; a litigant may not be informed of the substance of the allegations against her, she is not given the effective opportunity to rebut unfavourable evidence or bring favourable evidence that has been closed, and she is not given all the reasons on which the court gives judgment. Further to this, a number of special advocates, such as Martin Chamberlain, have argued that they are placed under daunting restrictions in practice. For example, contact between the litigant and the special advocate is highly restricted once the evidence has been closed which makes giving instructions practically impossible.

What do a British flight attendant, a geriatric nurse, a registrar of births, deaths and marriages and a relationship counselor have in common? In the recent case Eweida and Others v. United Kingdom at the European Court of Human Rights, three things came together. All four were practicing Christians. All four were banned by their employers from wearing Christian crosses around their necks while at work. And, third, all of their four cases on the freedom of religion and freedom from discrimination at work eventually ended up in Strasbourg, which ruled in January on their complaints, with differing results.

The two problems which I have in mind arise from two relatively recent decisions of the Hong Kong Courts. The first is the decision of the Court of Final Appeal in Democratic Republic of the Congo and others v. FG Hemisphere Associates LLC. The second is the decision of Judge Stone at first instance in The "Hua Tian Long" (No.2).

Over the past few years, the use and abuse of cyberspace has become an important topic in the field of international security. Incidents such as the cyber-attacks on Estonia (2007), Georgia (2008) and Iran (2010) served as concrete examples that national security may be directly affected by operations conducted via cyberspace.  Several states, including the United States and Russia, adopted security strategies specifically dealing with issues of cyberspace.[1]  The framing of cyberattacks in terms of national security, armed conflict and military strategy raises several foundational questions for international law. Apparently some cyber-operations cannot be fully captured in terms of civil, administrative and criminal jurisdiction, but also require the application of international conflict and security law, as laid down, inter alia, in the UN Charter and in the Geneva Conventions.[2]

For the International Criminal Court (ICC), the year 2012 ended with a bang: on 18 December, Trial Chamber II acquitted Mathieu Ngudjolo Chui, who had been accused of committing war crimes and crimes against humanity in the Democratic Republic of the Congo in 2003.

While the Court's first acquittal made the news primarily because of its political implications, the most interesting legal issue was somewhat hidden in the annex: Judge van den Wyngaert's 34-page concurring opinion is going to fuel the heated debate on the question of individual criminal responsibility under the Rome Statute. In her statement, Judge van den Wyngaert heavily criticises the current approach of the ICC's Trial Chambers, known as 'Control Theory'. Considering that Judge Fulford had annexed a similar plea to the Court's first judgment earlier in 2012, a deep division, if not confusion, among the judges of the Court in this crucial area becomes apparent. In this blog post, I suggest that the reasons for this confusion, which extends beyond the Court to the international legal community, may in fact lie in the preconceptions and cultural imprints that are imposed on all criminal lawyers by their legal education and professional experience.

‘Mr Prosecutor, you did a poor job.’ This is, in barely exaggerated terms, the message implicit in the ICC trial chamber’s judgement of 18 December 2012, the second in the Court’s history.

The judges unanimously acquitted Mathieu Ngudjolo Chui, charged with war crimes and crimes against humanity as indirect co-perpetrator for his alleged role in the attack on the village of Bogoro, Ituri, on 24 February 2003. Whilst the Trial Chamber found that crimes such as murder, plunder, and rape had undoubtedly been committed against civilians during the attack (including by child soldiers), it was not in position to determine the role played by the accused at the time.

This post examines some aspects of the decision in the case “Territorial and Maritime Dispute (Nicaragua v Colombia)” issued by the ICJ on 19 November 2012. Nicaragua had requested the Court to determine sovereignty over several maritime features in the Caribbean Sea and to carry out a maritime delimitation of the continental shelf between Nicaragua and Colombia. The Court had previously decided, at the preliminary measures stage of the case, that the 1928 Barcenas-Esguerra Treaty between the two countries did not effect a general delimitation of the maritime boundary. In the decision of 19 November 2012, the Court carried out a maritime delimitation unlikely to have been predicted by either party, departing slightly from what had become an expected methodology.

This piece is cross-posted on the SHARES Blog.

On 19 October 2012, a court of first instance in Hamburg sentenced ten Somalis to prison in what was the first piracy case before German courts in over four hundred years (the decision has not yet been released but for a comprehensive press release of the court in German see: here). The acts of piracy took place on 5 April 2010 when the Somalis entered the German container ship “Taipan”, which was on its way from Haifa to Mombasa about 530 nautical miles from the Horn of Africa. The heavily armed Somalis intended to take the crew of the Taipan hostage and to hold them for ransom, but the crew fled into a hidden safe room and cut the ship’s energy supply. Shortly thereafter the Somalis were arrested by the Dutch frigate "Hr. Ms. Tromp”, brought to the Netherlands and handed over to Germany on 10 June 2010. The proceedings began on 22 November 2010, and ended with prison sentences ranging from two to seven years for extortionate kidnapping (§ 239 (a) para. 1 of the German Criminal Code) and attacking sea transportation (§ 316 (c) para. 1 no. 1 of the German Criminal Code).

“On the 24^th, about half an hour after day-break, land was discovered bearing North East by East ½East. Upon nearer approach, it was found to be one of those low islands so common in this ocean; that is, a narrow bank of land inclosing the sea within. A few cocoa-nut trees were seen in two or three places; but in general the land had a very barren appearance. At noon, it extended from North East by East to South by East ½ East, about four miles distant. The wind was at East South East; so that we were under a necessity of making a few boards to get up to the lee or west side where we found from forty to twenty and fourteen fathoms water, over a bottom of fine sand….The meeting with soundings determined me to anchor, with a view to try to get some turtle; for the island seemed to be a likely place to meet with them…”

It was in these words that Captain James Cook, Commander of the 'HMS Resolution', recalled the discovery of Christmas Island near Kiribati 235 years ago on 24 December 1777. Following Kiribati’s independence, Christmas Island has been called Kiritimati Island since 1981. Although James Cook may have been the first to discover Christmas Island, it is questionable whether he did enough to acquire sovereignty over the island on behalf of the English Crown.

Following on from last weeks post by Mai Fujii, this week we have a post by Jaiyu Bai, offering a Chinese perspective of the Senkaku/Diaoyu Islands dispute.

The Diaoyu Islands Dispute

On 10 September 2012, the Japanese government announced the ‘purchase’ of Diaoyu Dao and its affiliated Nanxiao Dao and Beixiao Dao and the implementation of the so-called ‘nationalization’. This move stirred up once again the debate surrounding Diaoyu Dao between China and Japan. The following post sets out the author's personal understanding of the Chinese view of the legal issues involved in the dispute.

Recently news agencies around the world reported the non-existence of an island marked on nautical charts, in atlases and even on GoogleEarth (e.g. here). A boatload of scientists from the University of Sydney found 1400m of water where Sandy Island (aka Sable Id., sable being French for sand) was marked on their charts: 160°E 19°20′S, i.e. 50 km east of the France’s Chesterfield Reef, and 225 km west of New Caledonia. This depth of water suggests the island has not simply eroded.

The Cambridge Journal of International and Comparative Law has been the site of interesting and challenging posts in the year since its inception. What, if anything, unites these posts?

With the growing expansion of legal orders beyond the state and the increasing normative interaction and conflict occurring between them, practitioners, judges and legal academics from comparative, international (both public and private) and EU law disciplines face questions for which there may be no definite right answer. These questions require one to think about the nature of the legal orders in question, common foundations and challenges, and the need for mutual learning through the deployment of comparative legal methods.

On Thursday, November 29, 2012, Palestine will submit to the General Assembly of the United Nations (“UN”) a request that its status be changed from Observer to non-Member State Observer. Palestine has enjoyed Observer status at the General Assembly since 1974, when General Assembly Resolution 3237 invited Palestine, then still designated the Palestine Liberation Organization, “to participate in the sessions and the work of the General Assembly in the capacity of observer”. The change in status to a non-Member State Observer would grant Palestine the same status at the General Assembly as the Holy See currently enjoys. The draft resolution requires a majority of votes in the 193-Member General Assembly, and is very likely to pass. A concern circulating among certain UN Member States has been that the new status may make it possible for Palestine to initiate proceedings before the International Criminal Court (“ICC”) or the International Court of Justice (“ICJ”).

As outlined in a previous post, Argentina has applied to ITLOS for provisional measures regarding the Argentine navy ship ARA Libertad, currently detained in Ghana. The Tribunal is due to hold public hearings on the request for provisional measures beginning on Thursday, 29 November 2012. The purpose of this post is to set out the legal issues surrounding the granting of provisional measures by the Tribunal, so as to evaluate the submissions made by Argentina and Ghana during public hearings.

Jurisdiction

The request for provisional measures arises in the context of an arbitration initiated by Argentina under Annex VII of UNCLOS.