*une version française de cet article est disponible > ici <

Earlier this month, an agreement has been reached at the United Nations (UN) on the protection of the high seas (referred to as the “treaty” or the “agreement”). This has been discussed for over 20 years and marks a great step in the protection of international waters.

A few questions arise:

• What are international waters/high seas?
• Why is/was an international agreement necessary?
• What does this agreement entail?
• Will this impact the fight against climate change?

What are high seas?

First, recall that part of the seas (referring in this article to all sources of water, including rivers, seas and oceans) are under the jurisdiction of States. How could that be? Easy, States have a right over the seas that surround their territory, and make part of their territory, according to international law (over 200 nautical miles), and the rest forms the high seas -which can also be called international waters.

Process leading to the adoption of this agreement: Why was such an agreement needed?

Regulation of the seas

In the XVIIth century, two notions were in opposition: mare clausum and mare liberum (sovereignty over the seas / liberty of exploitation of the seas).

At the end of the XVIIIth century, it has been agreed that the two notions were actually not exclusive, mare liberum led to the principle of liberty at sea and the development of international maritime trade, and mare clausum led to the sovereignty of States over the coastal areas. This has been enshrined in the Montego Bay Convention -which is customary law for States that have not ratified it.

The 1982 Montego Bay Convention (the UN Convention on the Law of the Seas, UNCLOS – in force since 1994) states that:

• The coastal State has sovereignty over 200 nautical miles, as follows:
  • The territorial sea (12 nautical miles)
  • The economic exclusive zone (188 nautical miles)
• Then, there is the high seas (liberty).

However, the high seas stay largely under-regulated, which leads to illicit fisheries activities and a loss in terms of biodiversity. This has had impacts on coastal States’ economies because the rapid collapse of stocks has deprived certain States, whose resources are essentially marine, of their livelihood.

Since there is not sovereignty over the high seas, these are “exploited” in application of the principle of common management.

In order to better regulate and frame the use of resources in the high seas, other instruments have been adopted, such as:

• The 1995 FAO Code of Conduct for Responsible Fisheries
• The 1995 UN Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

But a treaty specifically on the high seas (which represents over 60% of the seas!), adopted at the international level, was needed and has been under discussion since 2004.

Key steps in the adoption of the treaty

• In 2015, the UNGA adopted resolution 69/292, which wishes to establish a binding international instrument on marine biodiversity. A committee has been formed in that purpose.
• In 2017, the UNGA adopted resolution 72/249 to establish the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ). It has for objective to elaborate an international legally binding instruments (treaty) based on the recommendations of the above-mentioned committee.
• In 2022, States made, at the UN biodiversity conference, a pledge to “to protect a third of the sea (and land) by 2030.”
• On March 4th, 2023, the UN Member States, at the UN General Assembly, adopted the Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (High Seas Treaty).

It is worth noting that the adoption at the UNGA means this has been agreed by a majority of the 193 UN Member States. Such a large adoption could lead, as for the Montego Bay Convention, to give the provisions of the treaty a customary force applicable to the reluctant States.

The Treaty, however, is not in force yet: 60 States have to ratify it for that.

What does this agreement entail?

The agreement is 54 pages long and refers to many issues linked to the oceans, economy, pollution and biodiversity. See below the content of the treaty, with a few important points:

Preamble

• It refers to biodiversity loss, the impact of climate change on marine ecosystems, and pollution; as well as indigenous peoples and the UN Declaration on the Rights of Indigenous Peoples.
• The preamble ends with these two sentences: “Committed to achieving sustainable development, Aspiring to achieve universal participation,” meaning that this treaty has a sustainability goal, aligned with the SDGs (Sustainable Development Goals) and aims to set out rules and principles that should/must be universally recognized and accepted – and therefore become customary law?

Part I General provisions

• It uses, as in the Montego Bay Convention, a negative definition of the high seas: “This Agreement applies to areas beyond national jurisdiction.” (Article 3) Here, however, it also comprises marine protected areas (Article 1).
• Its objective is stated as follows: “[…] ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, […].”
• The implementation of the treaty rests on 13 principles, set out in article 5:

“(a) The polluter–pays principle;

(b) the principle of the common heritage of humankind which is set out in the Convention;

(b) bis. the freedom of marine scientific research, together with other freedoms of the high seas;

(c) The principle of equity, and the fair and equitable sharing of benefits;

(d) Precautionary principle or precautionary approach, as appropriate;

(e) An ecosystem approach;

(f) An integrated approach to ocean management;

(g) An approach that builds ecosystems resilience, including to adverse effects of climate change and ocean acidification, and also maintains and restores ecosystem integrity, including the carbon cycling services that underpin the ocean’s role in climate;

(h) The use of the best available science and scientific information;

(i) The use of relevant traditional knowledge of Indigenous Peoples and local communities, where available;

(j) The respect, promotion and consideration of their respective obligations, as applicable, relating to the rights of Indigenous Peoples or of, as appropriate, local communities when taking action to address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;

(k) The non-transfer, directly or indirectly, of damage or hazards from one area to another and the non-transformation of one type of pollution into another, in taking measures to prevent reduce, and control pollution of the marine environment;

(l) Full recognition of the special circumstances of small island developing States and of least developed countries;

(m) Acknowledgement of the special interests and needs of landlocked developing countries.”

Part II Marine genetic resources, including the fair and equitable sharing of benefits

• This part lays out the idea of an equitable repartition of the benefits “from activities with respect to marine genetic resources and digital sequence information on marine genetic resources”. (Article 7). In this regard, a benefit-sharing committee is established by article 11bis, to which the State parties will submit reports regularly (Article 13).
• It also refers to the traditional knowledge of indigenous peoples with regard to maritime genetic resources (Article 10bis).

Part III Measures such as area-based management tools, including marine protected areas

• This part provides for the possibility to establish area-based management tools that help for the conservation and sustainable use of areas requiring protection, and to strengthen the cooperation and coordination between States in the use of these tools.
• It also sets out emergency measures (article 20), adopted by the Conference of the Parties (see more below) when “a natural phenomenon or human-caused disaster has caused, or is likely to cause, serious or irreversible harm to marine biological diversity of areas beyond national jurisdiction, to ensure that the serious or irreversible harm is not exacerbated.”

Part IV Environmental impact assessments

• Environmental impact assessments are defined as “a process to identify and evaluate the potential impacts of an activity to inform decision-making.” (article 1)
• The obligation to conduct environmental impact assessments is, as set out in article 22, to assess the potential impact of an activity, and a report on it. Such assessments must be publicly available.
• Once the activity is ongoing, States have to monitor the implementation of the activities – referring again to the knowledge of the indigenous peoples – and review the impacts as well as conduct strategic environmental assessments.
• Moreover, a Scientific and technical Body is charged to develop standards and guidelines for the environmental impact assessments, to be adopted by the Conference of the Parties (article 41bis)

Part V Capacity-building and transfer of marine technology

• The part aims at developing the knowledge and research regarding the conservation and sustainable use of marine biological diversity as well as developing the marine scientific and technological capacity, and the cooperation between States in this regard.
• It establishes a capacity-building and transfer of marine technology committee to assist with these objectives and provide reports.

Part VI Institutional arrangements

• It establishes a Conference of the Parties (COP) solely dedicated to the matters at stake within this agreement (article 48). This COP is tasked to review and evaluate the implementation of the agreement.
• In the performance of its duties, it can request an advisory opinion from the International Tribunal for the Law of the Sea “on a legal question on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence.”
• A clearing-house mechanism is established under the form of an open-access platform allowing States to disseminate information and enhance transparency, inter alia.

Part VII Financial resources and mechanism

• The institutions established by the agreement are funded through the contributions of the Parties, and a mechanism for the financial resources is established.

Part VIII Implementation and compliance

• It establishes a Compliance Committee to “facilitate and consider the implementation of and promote compliance with the provisions of this Agreement […] in a manner that is transparent, non-adversarial and non-punitive”, meaning that non-compliance to the treaty will not be sanctioned.

Part IX Settlement of disputes

• It recalls the obligation to settle disputes by peaceful means, and provides a procedure for that.

Part X Non-parties to this agreement

• It encourages non-parties to become parties to the agreement.

Part XI Good faith and abuse of rights

• Parties should implement this agreement and fulfil their obligations in good faith.

Part XII Final provisions

• The agreement is fully accepted, no reservations from the Parties are possible.

Annexes

• Annex 1 Indicative criteria for identification areas
• Annex 2 Types of capacity-building and transfer of marine technology

Will this impact the fight against climate change?

This agreement refers to pollution, to the protection of ecosystems and marine biodiversity, and sets out obligations to make assessments before conducting an activity and then monitor and review the actual impact of the said activity in the high seas. It also lets the newly created COP (not related to the UN COP on the Climate) take emergency measures before/during/after human-led or natural disasters impact the marine ecosystem of the high seas. This definitely would help avoid activities and projects that are absolutely not sustainable and do not take into account the marine environment.

The main weakness, however, is the lack of sanctions and penalties in the event of a State’s non compliance with the provisions of the treaty despite the establishment of several monitoring committees.

For more information on the relations of the treaty with climate change:

UNFCCC, New Historic UN Treaty on Oceans Can Help Climate Action (7 March 2023) https://unfccc.int/news/new-historic-un-treaty-on-oceans-can-help-climate-action

Sources

Conventions and other instruments

UN Convention on the Law of the Sea (Montego Bay Convention; UNCLOS), 1982 https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

More on the convention: https://legal.un.org/avl/ha/uncls/uncls.html

Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (Draft agreement), 4 March 2023

https://www.un.org/bbnj/sites/www.un.org.bbnj/files/draft_agreement_advanced_unedited_for_posting_v1.pdf

FAO, Code of Conduct for Responsible Fisheries 1995 https://www.fao.org/iuu-fishing/international-framework/code-of-conduct-for-responsible-fisheries/en/

UN, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 https://www.fao.org/iuu-fishing/international-framework/un-fish-stocks-agreement/en/

General information

High Sea Alliance https://www.highseasalliance.org/

UN, Thematic Questions, Oceans and the law of the sea https://www.un.org/en/global-issues/oceans-and-the-law-of-the-sea

Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (General Assembly resolution 72/249)

https://www.un.org/bbnj/?_gl=1*142370c*_ga*MjQ4MzE3MzQ0LjE2ODAwMTMwMjQ.*_ga_TK9BQL5X7Z*MTY4MDAxMzAyMy4xLjAuMTY4MDAxMzAyMy4wLjAuMA..

Articles

The Guardian, High seas treaty: historic deal to protect international waters finally reached at UN (5 March 2023) https://www.theguardian.com/environment/2023/mar/05/high-seas-treaty-agreement-to-protect-international-waters-finally-reached-at-un

UN News, UN delegates reach historic agreement on protecting marine biodiversity in international waters (5 March 2023) https://news.un.org/en/story/2023/03/1134157

Euronews, UN agrees ‘once-in-a-generation’ treaty to protect biodiversity in oceans (5 March 2023) https://www.euronews.com/2023/03/05/un-agrees-once-in-a-generation-treaty-to-protect-biodiversity-in-oceans

UNFCCC, New Historic UN Treaty on Oceans Can Help Climate Action (7 March 2023) https://unfccc.int/news/new-historic-un-treaty-on-oceans-can-help-climate-action

The Nature Conservancy, Jennifer Morris, High Time for a High Seas Treaty (28 February 2023) https://www.nature.org/en-us/what-we-do/our-insights/perspectives/high-time-for-high-seas-treaty/

The post High Seas Treaty appeared first on AF Translation Services.

*une version française de cet article est disponible > ici <

A year ago, on February 24, 2022, the Russian Federation started the invasion of Ukraine. This invasion is a violation of the UN Charter[1] and is the start of an international armed conflict and therefore marks the start of the applicability of International Humanitarian Law (IHL – the Geneva Conventions).

UN Charter, Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
…
4.  All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

What is striking here is the actual reality of the invasion: How is that possible in 2022 in Europe?

Which leads us to more questions:

Are there no safeguards or instruments that could have prevented this aggression?
Have they not been implemented?
What reactions have been noted at the international and European levels?
What could be implemented to restore the international legal order?

I. Safeguards and context

A. An effort to create lasting peace through cooperation and legal agreements

In the aftermath of World War II, European countries had a will to consolidate relations between them, especially through cooperation and economic ties, in order to avoid the resurgence of such conflicts.

This process led to the creation of the Council of Europe in 1949, whose main objectives are to promote democracy, human rights and the rule of law, and to the start of the European construction, through the creation of the European Coal and Steel Community in 1951.

At the international level, the United Nations have been established right after the war, in 1945, to promote cooperation and assistance to resolve disputes. As mentioned above, the UN Charter (the founding document of the UN) advocates for the pacific settlement of disputes in its Chapter IV.

Note on the use of violence to resolve conflicts:

Before 1945, this was a “natural” way of resolving disputes and was regularly used between States.

In 1945, States decide this should not be the preferred mean, and enshrine in the UN Charter that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” and that  “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” – UN Charter, article 2 paragraphs 3 and 4.

So, States should refrain from starting armed conflict. But, under some circumstances, the use of violence is still “permitted”:

1. The UN Security Council may decide to take actions “as may be necessary” (the international law wording to refer to armed actions) in order to “maintain or restore international peace and security.” – UN Charter article 42.
2. A State may act in self-defense – UN Charter article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

In the matter at stake in this article, Ukraine acted in self-defense against the attack, invasion, aggression of Russia, after the violation of the UN Charter by the latter.

Since two States are fighting against one another, this situation is classified as an international armed conflict by international humanitarian law (IHL). Therefore, IHL now applies and aims at protecting the people impacted by the conflict.

B. Hints and signs opening way for a Russian occupation

Ukraine has been partly annexed by the Russian Empire in 1793, and completely in 1922, after an internal civil war.[2] In 1991, with the fall of the Soviet Union, Ukraine became independent from the USSR but the transition for democracy has not been an easy path.

Less than 10 years ago, Russia invaded and started occupying the Crimean region of Ukraine, leading to its annexation. The Minsk Agreements have been signed between Ukraine and Russia in 2014 and 2015 included interalia a ceasefire and were conducted and implemented under the auspices of the OSCE (Organization for Security and Co-operation in Europe) – click here to learn more about the Minsk Agreement.

The influence of Russia over Ukraine, especially in politics, has led to a “turning from” the European union and “turning on” Russia. Before the 2022 invasion, press articles were already discussing a possible invasion from Russia.

See, for example, the following articles:

• https://www.thebulwark.com/war-europe-could-be-imminent-ukraine-russia-putin-biden/
• https://ecfr.eu/publication/the-crisis-of-european-security-what-europeans-think-about-the-war-in-ukraine/
• https://news.un.org/en/story/2022/02/1112412

With the start of this current conflict[3], a year ago, and the subsequent annexation of territories in the Donetsk, Luhansk, Zaporizhzhia and Kherson regions of Ukraine on 30 September 2022, the mission of the OSCE to implement the Minsk agreements has been put to a hold.[4][5] But this conflict have had – and continue to have – much more dire impacts than that.

II. The impacts of the war at the national, European and international levels

A. Power shift and changing relations…

This armed conflict has influenced lots of changes in Europe, especially the following:

It recalled that armed conflict are not that far from “us” and do not always happen “far away”.

It reinforced the need to be less dependent from Russia – especially energy-wise.[6]
The economic impact have had consequences all over Europe, with many companies leaving Russia or stopping working with/in Russia, international sanctions, and the subsequent inflation.[7]

It strengthened ties between Ukraine and the European Union, with Ukraine obtaining the “candidate country” status to European Union membership.[8]
It also brought back to the forefront the (old) idea of a Europe common defense and the role of NATO. Indeed, Sweden and Finland decided to join NATO in May 2022: “Russian President Vladimir Putin has cited NATO expansion as one of the main reasons for invading Ukraine, but it appears the invasion has had the opposite effect of strengthening the western military alliance.”[9]

Subsequently to the invasion, Russia has been excluded from the Council of Europe in March 2022 – it joined in February 1996[10] – in reaction to the “unjustified and unprovoked aggression” of Ukraine.[11]

B. …in response to the impacts of the war

The motor and core to these changes are the dire impacts of war:[12]

• Annexation of regions and related displacement of people;
• Increased risk of human trafficking;[13]
• Attack against energy infrastructures;
• War crimes (see more under Sources);
• Freedom of information and right to peaceful assembly: crack down on independent media in Russia;
• Right to food / food insecurities;
• Destruction of cultural heritage sites;[14]
• Use of mercenaries.[15]

III. What actions have been taken and what can be done?

As discussed above, the European Union and Council of Europe showed support to Ukraine, economically and politically, and Ukraine is applying to EU membership. Apart from the support to Ukraine, what measures have been taken against Russia and the Russian invasion?

A. At the political level

European Union (EU)

The EU repeatedly condemned the war of aggression against Ukraine, as early as 24 February 2022:

“The European Council demanded that Russia:

• immediately ceases its military actions
• unconditionally withdraws all forces and military equipment from Ukraine
• fully respects Ukraine’s territorial integrity, sovereignty and independence
• respects international law
• stops their disinformation campaign and cyber-attacks”.[16]

Subsequently, the EU decided on sanctions and restrictive measures, mainly economic, against Russia. On 25 February 2023, the EU adopted its 10th of restrictive measures against Russia.[17]

Moreover, the European Commission has announced, in early 2023, the launch of a center, the International Center for the Prosecution of the Crime of Aggression, that will coordinate the collection of evidence against Russia for the crime of aggression (see more under the Legal level part), to ensure accountability.[18] This Centre will be operational in July 2023. [19]

United Nations (UN)

The United Nations mains organs (the Security Council, the General Assembly and the Office of the High Commissioner for Human Rights – OHCHR) have denounced and condemned the armed actions and invasion of Ukraine by Russia.

Following the invasion, the UN Security Council (UN SC) had a meeting during which it was prevented from “exercising its responsibility to uphold international peace and security” and “exercising its primary responsibility for the maintenance of international peace and security” due to the veto of the Russian Federation. As a result, the General Assembly has decided to resort to a procedural resolution, which “[precludes] the use of a veto by the Council’s permanent members (China, France, Russian Federation, United Kingdom, United States),” to adopt resolution 2623 (2022).[20]

In April 2022, the UN Assembly General (UN AG) decided that if a veto is used by any of the five permanent Member States in the Security Council, the UN GA automatically meets within 10 days so “all UN members can scrutinize and comment on the veto.”[21]

B. At the legal/judicial level

The armed conflict and invasion of Ukraine by Russia is a “crime of aggression” which, as defined by the Rome Statute of the International Criminal Court, “means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[22]

European Court of Human Rights (ECHR)

At the request of the Ukrainian Government, and in application of Rule 39 of the Rule of the Court[23], the ECHR requested interim measures (“urgent measures that aim to prevent an imminent risk of irreparable harm”)[24] and asked the Russian Government to refrain from “military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.”[25]

However, the ECHR’s purpose is to ensure the respect and implementation of the European Convention of Human Rights, and will deal with violations of human rights (and not war crimes).[26]

(You can find here the list of pending cases before the Court.)

International Law and the International Court of Justice (ICJ)

The following case is pending before the ICJ: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).[28]

The process started back in February 2022 and is ongoing. At the current stage, Ukraine had until early February 2023 to present its conclusions and observations the preliminary objections raised by the Russian Federation.

(this part may be updated depending on developments)

International penal law and the International Criminal Court (ICC)

The International Criminal Court has jurisdiction with respect to genocide, crimes against humanity, war crimes, and the crime of aggression[29] (know as international crimes).

As early as 28 February 2022, the ICC Prosecutor decided to “proceed with opening an investigation.”[30] This is an important move from the Prosecutor as Ukraine is not part of the ICC and cannot seize the Court (to learn more about the ICC, click here). The investigation focus on crimes committed since November 2013 (and the invasion of Crimea).[31]

(this part may be updated depending on developments)

Moreover, the ICC and Eurojust are cooperating on a joint investigation team on international crimes committed in Ukraine.[32]

Ways forward?

While the outcome of this war is still out of reach, one year in, we witness actions taken towards accountability and continued support shown to Ukraine, as well as the incredible resilience of the Ukrainian people. We hope for justice and accountability, through the use of the European and International Courts as well as through the use of universal jurisdiction and, maybe, to the implementation of a dedicated Court, as it has been the case with the International Criminal Tribunal for the former Yougoslavia or the International Criminal Tribunal for Rwanda.

Sources/To know more:

UN Charter https://www.un.org/en/about-us/un-charter/chapter-1

Office of the High Commissioner for Human Rights’ page on Ukraine https://www.ohchr.org/en/countries/ukraine

About the history of Ukraine and its links with the USSR and then Russia

• https://www.nationalgeographic.fr/histoire/russie-ukraine-les-origines-de-la-crise-expliquees
• https://www.osce.org/ukraine-latest

International Criminal Court, Rome Statute https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

About ad-hoc international tribunals https://www.icrc.org/en/document/ad-hoc-tribunals
https://www.icrc.org/fr/doc/war-and-law/international-criminal-jurisdiction/ad-hoc-tribunals/overview-ad-hoc-tribunals.htm (in French)

About international crimes

• https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml
• https://www.justiceinitiative.org/uploads/cf498f48-0f30-453a-9e4e-36701512f646/mx-factsheet-icl-20160603_0.pdf
• https://www.eurojust.europa.eu/crime-types-and-cases/crime-types/core-international-crimes
• https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf

About the crime of aggression https://coalitionfortheicc.org/explore/icc-crimes/crime-aggression

About war crimes in Ukraine

• https://time.com/6156680/war-crimes-putin-russia-zelensky-challenges/
• https://www.aljazeera.com/news/2022/3/8/germany-launches-probe-into-suspected-war-crimes-in-ukraine
• https://www.reuters.com/world/europe/un-names-experts-probe-possible-war-crimes-ukraine-2022-03-30/
• https://www.reuters.com/world/europe/eu-seeks-set-up-russian-war-crimes-tribunal-von-der-leyen-2022-11-30/
• https://iwpr.net/global-voices/ukraine-the-quest-for-justice
• https://www.reuters.com/world/europe/how-are-war-crimes-ukraine-being-investigated-2023-02-23/
• “Prosecuting Aggression against Ukraine as an ‘Other Inhumane Act’ before the ICC” https://academic.oup.com/jicj/article-abstract/20/5/1061/6917097?redirectedFrom=fulltext

Analysis of the conflict and/or one-year analysis

• https://www.euractiv.com/section/global-europe/opinion/a-year-in-ukraines-eu-integration-and-the-path-to-peace/
• https://neighbourhood-enlargement.ec.europa.eu/news/speech-president-von-der-leyen-european-parliament-plenary-one-year-russias-invasion-and-war-2023-02-15_en
• https://blogs.icrc.org/law-and-policy/2022/03/17/armed-conflict-in-ukraine-a-recap-of-basic-ihl-rules/
• https://2idhp.eu/point-de-vue/la-guerre-en-ukraine-une-analyse-de-droit-international/ (French only)

Guidelines for documenting international crimes https://www.icc-cpi.int/news/icc-prosecutor-and-eurojust-launch-practical-guidelines-documenting-and-preserving-information

Many other conflicts are ongoing on different parts of the world, to learn more about that, check out the following links:

• https://www.euronews.com/my-europe/2021/07/23/are-european-arms-fuelling-wars-and-conflicts-worldwide
• https://www.cfr.org/global-conflict-tracker/

[1] UNSDG, “Russia’s invasion of Ukraine is a violation of the UN Charter, UN Chief tells Security Council” (5 May 2022) https://unsdg.un.org/latest/announcements/russias-invasion-ukraine-violation-un-charter-un-chief-tells-security-council (consulted on 7 February 2023)

[2] National Geographic, “Russie-Ukraine : les origines de la crise expliquées” (last update 24 Feb. 2022) https://www.nationalgeographic.fr/histoire/russie-ukraine-les-origines-de-la-crise-expliquees (consulted on 20 Feb. 2023)

[3] Permanent representation of France to the OSCE, “The OSCE and Russia’s war of aggression against Ukraine” (last update 31 Jan. 2023) https://osce.delegfrance.org/The-crisis-in-and-around-Ukraine (consulted on 20 Feb. 2023)

[4] OSCE, “Annexation of Ukrainian territories is illegal and a threat to human rights, say OSCE human rights Director and OSCE media freedom Representative” (6 Oct. 2022) https://www.osce.org/odihr/528075 (consulted on 20 Feb. 2023)

[5] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

[6] Le Monde, « Guerre en Ukraine : le plan de la Commission européenne pour se passer des hydrocarbures » russes (8 March 2022) https://www.lemonde.fr/economie/article/2022/03/08/le-plan-de-la-commission-europeenne-pour-se-passer-des-hydrocarbures-russes_6116667_3234.html?xtor=EPR-32280629-%5ba-la-une%5d-20220309-%5bzone_edito_1_titre_3%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[7] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

[8] European council, “European Council conclusions on Ukraine, the membership applications of Ukraine, the Republic of Moldova and Georgia, Western Balkans and external relations, 23 June 2022” https://www.consilium.europa.eu/en/press/press-releases/2022/06/23/european-council-conclusions-on-ukraine-the-membership-applications-of-ukraine-the-republic-of-moldova-and-georgia-western-balkans-and-external-relations-23-june-2022/ (consulted on 23 Feb. 2023)

See more:

https://www.reuters.com/business/aerospace-defense/ukraine-becomes-eu-membership-candidate-battle-east-enters-fearsome-climax-2022-06-23/

https://www.europarl.europa.eu/news/en/press-room/20220616IPR33216/grant-eu-candidate-status-to-ukraine-and-moldova-without-delay-meps-demand

https://ec.europa.eu/environment/enlarg/candidates.htm

https://neighbourhood-enlargement.ec.europa.eu/european-neighbourhood-policy/countries-region/ukraine_en

“On 28 February 2022, Ukraine sent its application for EU membership. On 17 June 2022, the European Commission presented its Opinions […] Ukraine was given a European perspective and granted candidate status on 23 June 2022 by unanimous agreement between the leaders of all 27 EU Member States.”

FR https://france.representation.ec.europa.eu/informations/adhesion-de-lukraine-lue-comment-ca-marche-2022-06-24_fr

Le Monde, “Les Vingt-Sept excluent l’idée d’une adhésion rapide de l’Ukraine à l’Union européenne” (11 March 2022) https://www.lemonde.fr/international/article/2022/03/11/les-vingt-sept-excluent-l-idee-d-une-adhesion-rapide-de-l-ukraine-a-l-union-europeenne_6117011_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220311-%5bzone_edito_1_titre_1%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[9] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

New York Times, “Ukraine War Accelerates Shift of Power in Europe to the East” (26 Jan. 2023)

https://www.nytimes.com/2023/01/26/world/europe/eu-nato-power-ukraine-war.html (consulted on 23 Feb. 2023)

[10] République Française, Vie publique “Guerre en Ukraine : la Russie exclue du Conseil de l’Europe” (18 March 2022) https://www.vie-publique.fr/en-bref/284440-guerre-en-ukraine-la-russie-exclue-conseil-de-leurope (consulted on 23 Feb. 2023)

Council of Europe, “The Russian Federation is excluded from the Council of Europe” (16 March 2022) https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe (consulted on 23 Feb. 2023)

[11] Council of Europe, War in Ukraine https://www.coe.int/en/web/portal/war-in-ukraine (consulted on 23 Feb. 2023)

[12] Timelines of violations:

Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022

Le Monde, “Guerre en Ukraine” https://www.lemonde.fr/crise-ukrainienne/

[13] Reuters, “COVID-19 cut known human trafficking, but Ukraine war a risk: U.N.” (24 Jan. 2023) https://www.reuters.com/world/covid-19-cut-known-human-trafficking-ukraine-war-risk-un-2023-01-24/ (consulted on 23 Feb. 2023)

[14] UN, “Ukraine: deliberate destruction of culture must stop, say rights experts” (23 Feb. 2023) https://news.un.org/en/story/2023/02/1133762 (consulted on 27 Feb. 2023)

[15] OHCHR, Statement by the UN Working Group on the use of mercenaries warns about the dangers of the growing use of mercenaries around the globe (last update 4 March 2022) https://www.ohchr.org/en/statements/2022/03/statement-un-working-group-use-mercenaries-warns-about-dangers-growing-use

OHCHR, International standards Working – Group on the use of mercenaries https://www.ohchr.org/en/node/3383/international-standards (consulted on 23 February 2023)

ICRC, The Issue of Mercenaries https://casebook.icrc.org/case-study/issue-mercenaries (consulted on 23 February 2023)

[16] European Council, Special meeting of the European Council, 24 February 2022 https://www.consilium.europa.eu/en/meetings/european-council/2022/02/24/?utm_source=linkedin.com&utm_medium=social&utm_campaign=20220224-special-euco&utm_content=carousel (consulted on 23 Feb. 2023)

[17] European Commission, “EU sanctions against Russia following the invasion of Ukraine” (last update 21 Dec. 2022) https://ec.europa.eu/commission/presscorner/detail/en/fs_22_1402 (consulted on 23 Feb. 2023)

European Council, “EU response to Russia’s invasion of Ukraine” https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/?utm_source=linkedin.com&utm_medium=social&utm_campaign=20230225-russia-sanctions-10package&utm_content=visual-card (consulted on 27 Feb. 2023)

[18] VOA, “European Commission to Set Up Center for Prosecution of Russia’s ‘Crime of Aggression’” (2 Feb. 2023) https://www.voanews.com/a/european-commission-to-set-up-center-for-prosecution-of-russia-s-crime-of-aggression-/6945659.html (consulted on 23 Feb. 2023)

[19] JusticeInfo.Net « UKRAINE: LE CENTRE D’ENQUÊTES SUR LE CRIME D’AGRESSION OPÉRATIONNEL EN JUILLET » (17 Feb. 2023) https://www.justiceinfo.net/fr/112533-ukraine-le-centre-denquetes-sur-le-crime-dagression-operationnel-en-juillet.html (consulted on 23 Feb. 2023)

[20] UN, Ukraine – Security Council, 8980th meeting (27 Feb. 2022) https://media.un.org/en/asset/k1x/k1x01ewk24?fbclid=IwAR0nMEu8e_zgJl9RfG4SjxZl5x6X6VDu_rKfQf0xBfUvXyhxttC9urQZTNs (consulted on 23 Feb. 2023)

UN, “Security Council Calls Emergency Special Session of General Assembly on Ukraine Crisis, Adopting Resolution 2623 (2022) by 11 Votes in Favour, 1 Against, 3 Abstentions” https://press.un.org/en/2022/sc14809.doc.htm

[21] Le Monde, « Guerre en Ukraine : les Nations unies adoptent l’obligation de justifier tout veto, sur fond de blocage russe sur l’Ukraine » (last update 27 Apr. 2022) https://www.lemonde.fr/international/article/2022/04/26/les-nations-unies-adoptent-l-obligation-de-justifier-tout-veto-sur-fond-de-blocage-russe-sur-l-ukraine_6123773_3210.html (consulted on 23 Feb. 2023)

United Nations, “UN General Assembly mandates meeting in wake of any Security Council veto” (26 Apr. 2022) https://news.un.org/en/story/2022/04/1116982 (consulted on 23 Feb. 2023)

[22] International Criminal Court, Rome Statute, article 8bis https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

[23] “Under Rule 39 of the Rules of Court, the Court may indicate interim measures to any State Party to the European Convention on human Rights. Interim measures are urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm.”

[24] ECHR Blog, “ECHR issues interim measures concerning Russian military operations in Ukraine” (1 March 2022) https://www.echrblog.com/2022/03/echr-issues-interim-measures-concerning.html (consulted on 23 Feb. 2023)

[25] European Court of Human Righs, Press release “The European Court grants urgent interim measures in application concerning Russian military operations on Ukrainian territory”, ECHR 068 (2022) (1 March 2022) https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7272764-9905947&filename=The%20Court%20grants%20urgent%20interim%20measures%20in%20application%20concerning%20Russian%20military%20operations%20on%20Ukrainian%20territory.pdf (consulted on 23 Feb. 2023)

[26] Julia Crawford, JusticeInfo.Net, “UKRAINE VS RUSSIA: WHAT THE EUROPEAN COURT OF HUMAN RIGHTS CAN (AND CAN’T) DO” (7 Apr. 2022) https://www.justiceinfo.net/en/90187-ukraine-russia-european-court-of-human-rights-can-do.html (consulted on 23 Feb. 2023)

[27] European Court of Human Rights, Inter-State applications https://www.echr.coe.int/Pages/home.aspx?p=caselaw/interstate&c= (consulted on 23 Feb. 2023)

[28] International Court of Justice, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) https://www.icj-cij.org/case/182

See also (in French) Le Monde, “Guerre en Ukraine : Kiev plaide contre la Russie devant la Cour internationale de justice” (7 March 2022) https://www.lemonde.fr/international/article/2022/03/07/guerre-en-ukraine-kiev-plaide-contre-l-invasion-russe-devant-la-cour-internationale-de-justice_6116402_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220307-%5bzone_edito_1_titre_2%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[29] International Criminal Court, Rome Statute, article 5.

[30] International Criminal Court, “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.”” (28 Feb. 2022) https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening (consulted on 23 Feb. 2023)

[31] International Criminal Court, Ukraine https://www.icc-cpi.int/ukraine

Le Monde, « Guerre en Ukraine : la Cour pénale internationale s’apprête à enquêter sur les crimes commis sur le terrain » (last update 5 March 2022) https://www.lemonde.fr/international/article/2022/02/28/l-ukraine-saisi-la-cour-internationale-de-justice_6115558_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220301-%5bzone_edito_1_titre_4%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[32] Eurojust, “ICC participates in joint investigation team supported by Eurojust on alleged core international crimes in Ukraine” (25 April 2022) (https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-international-crimes (consulted on 27 Feb. 2023)

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*une version française de cet article est disponible > ici <

A month ago, on December 30th, 2022, the General Assembly of the United Nations (UN) adopted a resolution asking the International Court of Justice (the ICJ) to give an advisory opinion on the impact of the Israeli practices on human rights in the occupied Palestinian territories (OPT).

This raises a few questions:

– What are the UN and what competence does they have?

– What is the jurisdiction of the International Court of Justice (ICJ)?

– What is the background of the Israeli occupation of the OPT?

– Why does the UN ask for an advisory opinion now? Has the context changed? What could be its impact?

For answers to the first two questions, check out this article on international institutions, even though a few aspects may be mentioned here.

Read this article to know more about the Israeli occupation of the OPT.

Israeli occupation – background

A little bit of history first…

The creation of the State of Israel has been evoked in 1917, in the Balfour Declaration, stating the British support to “the establishment in Palestine of a national home for the Jewish people.” This issue stayed in the hand of the United Kingdom until the 1940s, with a British mandate to provide administrative guidance for the transition to full independence, but it did not achieve his goal.

In 1947, 30 years after the Balfour Declaration, and after the Second World War, the UN General Assembly adopted resolution 181 (II), establishing a partition plan for the establishment of Israel on 56 per cent of the Palestinian territory. The State of Israel is established a year later, in 1948, but in violation of the 1947 partition plan, leading the displacement of thousands of Palestinians.

Since 1947, Israel has been taking more and more of the Palestinian territory, by the use of force and creating new conflicts. In 1967, during the “six days war”, Israel invaded part of the remaining Palestinian territory, leading to more displacements.

The maps below show the partition of Israel and Palestine as well as which parts of Palestine are under Israeli control, Palestinian control, or mixed control.

Violations of International Law, International Human Rights Law, and International Humanitarian Law (IHL)

The violations committed by Israel on the Palestinian territory and against Palestinians are still ongoing, including violence, discrimination, special treatments, etc. See the UN news for information : https://news.un.org/en/search/palestine

Israel violates

• International Law as the State of Israel is part of the international community and is subject to customary international law and has obligations under the treaties and instruments it ratified;
• International Human Rights Law is a special part of International Law dealing with duties States have to uphold and protect human rights;
• International Humanitarian Law (IHL) as Israel is an occupying force in Palestine, violation the laws of war. IHL applies to situations of conflicts.

If you would like to know more about human rights and humanitarian law, click here; about international law, click here.

Here are a few violations committed by Israel (and the related instrument)

• Self-determination (UN Charter)
• Occupying force > violation of IHL (Geneva Conventions)
• Right to life (International Covenant on Civil and Political Rights)
• Torture, mistreatments (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)
• Right to education (Convention on the Rights of the Child)
• Discriminations (International Convention on the Elimination of All Forms of Racial Discrimination)

International reactions

If Israel has been violating Palestinian rights for over 70 years, what has been the reaction of the international community to these blatant violations of international law?

Since 1947, the UN has repeatedly taken position against the occupation of Palestine and for the respect of the rights of the Palestinian people:

• UN General Assembly, resolution 194 (1948): right to return home and right for a compensation. Adopted after the 1947 invasion, this is not respected by Israel.
• UN Security Council, resolution 242 (1967): right of an independent State without interference and with defined borders in which Palestinians will live in dignity. The UN reaffirms this right after the Six days war.
• UN General Assembly, resolution 3236 (1974): reaffirms the “inalienable right” of return of Palestinian refugees from both the 1948 and 1967 hostilities.
• N Security Council, resolution 1397 (2002) : reaffirms the vision of a region where two States would live side by side within secure and recognised borders.

In addition, several mechanisms or entities have been created by the UN to deal with this issue:

• UN General Assembly, resolution 3376 (1975) established the Committee on the Inalienable Rights of the Palestinian People;
• An independent, international commission of inquiry with a mandate to investigate in the Occupied Palestinian Territory and in Israel all alleged violations of IHL and of international human rights law leading up to and since 13 April 2021 has been created by UN Human Rights Council resolution A/HRC/RES/S-30/1(2021);
• Moreover, the UN Human Rights Council, which mandate is to monitor and review the UN Member States’ respect of human rights, follow a 10 items Agenda, one of these idem focusing solely on the OPT issue. This is the only country issue that is permanently discussed by the Human Rights Council, at each session.

Attempts to resolve the conflict have been initiated and are still ongoing, giving rise to several agreements which however have not had the expected effects:

• 1993 Declaration of Principles on Interim Self-Government Arrangements (Oslo I).
• 1997 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II).

Activities of the international jurisdictions

The International Criminal Court (ICC) opened, on March 3rd, 2021, an investigation into the Situation in the State of Palestine since 2014.

To know more, check out this page: https://www.icc-cpi.int/palestine

The International Court of Justice (ICJ) gave another advisory opinion in 2004, at the request once again of the UN General Assembly, regarding the legality of the construction, by Israel, of a wall surrounding the OPT. The opinion recognised the illegality of this construction and the violation, inter alia, of the 4th Geneva Convention (IHL), the 1907 Hague Conventions (law of war), and both 1976 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.

See Legal consequences of the construction of a wall in the occupied Palestinian territory, Advisory opinion, July 9th, 2004

The UN General Assembly has requested an advisory opinion from the ICJ, for the second time regarding the situation in the OPT, on December 30th 2022 through resolution 77/247 “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem”.

Why this new request?

Over the last few years, violations of human rights and of humanitarian law (since it is a state of occupation, condemned under international humanitarian law), have significantly increased, including building demolitions that impact the rights to housing, to education, and to healthcare. It is in light of these continuing and growing violations that the General Assembly adopted resolution 77/247.

Reminding the State of Israel of international law principles and previous UN resolutions, the General Assembly stresses, for pages, its concerns, and demands Israel to respect its duties under international law and the international community to show solidarity with the Palestinian people. It ends the resolution by requesting an advisory opinion from the ICJ on the rules and principles of international law relating to:

(a) […] the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related
discriminatory legislation and measures?
(b) […] the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?

At present, the ICJ accepted the request. To follow with the process, check out this link.

Limits: non-binding instruments

Not all UN resolution have a binding nature (see https://ask.un.org/faq/15010) and the advisory opinions of the International Court of Justice are solely opinions and do not bind States.

These international actions bring light to issues and violations and call the international community to act. Due to their non-binding nature, do not “have” to be respect and followed by States but the advisory opinion will give greater weight to the pressures put on Israel to acknowledge its responsibility for the violations and to remedy them. The conclusions stated on the opinion may also be useful for the ongoing investigation of the International Criminal Court.

“Despite having no binding force, the Court’s advisory opinions nevertheless carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and help to keep the peace. In their own way, advisory opinions also contribute to the clarification and development of international law and thereby to the strengthening of peaceful relations between States.”

Sources:

History https://www.un.org/unispal/history/

On Palestine and the UN:

• https://palestine.un.org/en/about/about-the-un
• https://www.un.org/unispal/fr/

For information on Palestine https://news.un.org/en/search/palestine

For information on the Committee on the Inalienable Rights of the Palestinian People

https://press.un.org/en/committee-inalienable-rights-palestinian-people

To learn more about Israeli violations:

• https://www.amnesty.org/fr/location/middle-east-and-north-africa/israel-and-occupied-palestinian-territories/report-israel-and-occupied-palestinian-territories/
• https://www.hrw.org/middle-east/north-africa/israel/palestine

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But what are exactly these sources? How are they decided or created and then implemented?

This article is meant to briefly answer such questions, in a clear manner. Don’t hesitate to leave if comment through the contact form if you have any constructive criticisms!

a. International conventions

The term “convention” has two meaning:

• A generic meaning referring to conventions in general as sources of international law;
• A specific meaning referring to multilateral treaties with several parties.

The first meaning is used in the Statute. This “generic” term refers to all international agreements, even if the word “treaty” or “declaration” is put in the document.

For example, the International Covenant on Civil and Political Rights is a “convention” with regard to the Statute’s classification. These sources are consequently called conventional law -as opposed to customary law that will be detailed below.

Like to word “convention”, the word “treaty” has two meanings: a specific one and a generic one. According to the generic meaning, the word treaty embraces “all instruments binding at international law concluded between international entities, regardless of their formal designation”.

There is sometimes a confusion between the words treaty and convention as used in their generic meaning.

b. International custom

Customary law arises from international practice -or “custom”. For this practice to become law, two things are essential:

• It must be an established practice, meaning it has been applied many times and by many States (this is the material element);
• The practice must be recognized as creating an obligation -the States respect it because there is a sense of legal obligation (this is the opinio juris).

Once customary law is identified, it is often -but not always- codified (put in writing). For example, the practices relating to the sea have been codified in the 1982 United Nations Convention on the law of the sea -known as the Montego Bay Convention.

c. General principles of law recognized by civilized nations

These are principle that existing at the domestic level – or national/State level. These principles are adapted to the international legal order.

In 2018, the International Law Commission decided to include the general principles of law in its program of work, leading to a report from which I extracted a few key elements:

• There are two kinds of general principles of law: those derived from national legal systems and those formed within the international legal system;
• The principles are often viewed as “a supplementary source of international law in the sense that they serve to fill gaps in conventional and customary international law, or to avoid findings of a non liquet.” (non-liquet means something being unclear).

A few principles quoted in the report are:

• principle of fair trial;

• general principle of the direct applicability of international law with respect to individual responsibility and punishment for crimes under international law;

• general principle of the autonomy of international law over national law with respect to the criminal characterization of conduct constituting crimes under international law.

d. Judicial decisions and teachings of the most highly qualified publicists of the various nations

When listing out the sources of international law, this one is often left behind. This is why you will often hear/read about the “three sources of IL” instead of “four”.

This one is a bit tricky as the text of the ICJ Statute itself mentions this is “subject to provisions of article 59”. So, what is written in article 59?

Not really helpful, is it? It means that decisions of the Court are not “international law” because the said decision is only applicable to a specific context and case. But it does not give any information on other “judicial decisions” nor on the teachings.

Here are a few notes:

• judicial decisions are international or national court’s judgments (also referred to as case-law, legal precedent or jurisprudence). However, as shown in article 59 of the Statute, courts’ decisions often do not have a general scope as they only apply to a specific case.
• teachings are the thoughts of scholars on legal issues. The Statute only refers to the ones of the “most highly qualified publicists”.

Judicial decisions and teachings have a similar impact:

• Though these, we can identify international custom;
• Identify general principles of law; and
• These are auxiliary means in the determination of law (meaning they are used/referred to only when no other source of law deals with the issue).

NOTE: There is no hierarchy within the sources of international law.

The post Sources of international law appeared first on AF Translation Services.

*Une version française de cet article est disponible au lien suivant : https://www.aftranslationservices.com/droit-international/

First thing first, the term “international law” is often used to describe either public or private international law. It may be a little confusing but I’ll try to give you a glimpse of the issues at stake and persons concerned so you can differentiate them.

Private International Law

Private international law, also known as conflict of law, is meant to facilitate relations between private parties (most of the time, individuals). For example, a German and an Australian, living in Algeria, are getting divorced -which law is applicable? This is a matter dealt with in private international law.

Sources of private international law:

Some of it is codified into national law. For example, in France article 309 of the Code Civil deals with the conflict of law in case of divorce.

At the international level, it often takes the form of bilateral or multilateral conventions. A well-known example is the Treaty of Rome (signed in 1956, entered into force in 1957), which established the European Economic Community and aimed at regularizing trade within the Euro-area – or eurozone.

_{To know more about “conventions” and other sources of law, click here!}

Public International Law

Being specialized in public international law, this blog will mostly refer to issues linked to public international law -even when I only write “international law” (often shortened as “IL”).

So, are private and public international law different? You’ll understand by reading IL’s characteristics and history below.

Characteristics of IL:

• At first, IL was meant to govern the relationships between States. This is now seen as a limited definition, as some instruments recognize other subject of law – sometimes referred to as “subject at law”.
• It creates duties and obligations for the States.
• The obligations are not imposed on States but accepted by them, in respect of their national sovereignty. However, treaties often include a penalty mechanism and/or monitoring body.
• This is a law of cooperation.

History of IL:

A first in 1815: the Vienna Treaty lists obligations for sovereign States, accepted by them, which include: the principle of freedom of navigation on international waters and the abolition of slave trade. Before that, the international community -understood as a community of rights and duties- was almost inexistant.

Since then, international “institutions” began to appear; it culminated with the League of Nations (1919) and then the United Nations (1945). Other supra-national institutions have been created at the regional level: the Council of Europe, European Union, Association of the East-Asian States, Organisations of the American States inter alia.

These institutions constitute fora used to “create” IL instruments that are then signed and ratified (or not) by States. By such act, the State acknowledges its obligations under the said instrument.

_{an article dedicated to the institutions is available here.}

Sources of IL:

As identified by article 38.1 of the 1945 Statute of the International Court of Justice, there are three sources of international law: conventions (written source), customary international law (general practice accepted as law) and general principles of international law (rules or concepts recognized by “civilized nations”).

_{to learn more about sources of law, click here!}

Out of these sources, major instruments are:

• The Universal Declaration of Human Rights – UDHR (adopted in 1948). However, being a “declaration”, the UDHR is not legally binding – even though some “declarations” are…
• The United Nations Charter – UN Charter (1945) that is the founding document of the United Nations and codifies key principles of international relations).
• The International Covenant on Civil and Political Rights – ICCPR (adopted in 1966, entered into force in 1976). Its respect if monitored by the UN Human Rights Committee.
• The International Covenant on Economic, Social and Cultural Rights – ICESCR (adopted in 1966, entered into force in 1976). Its respect if monitored by the Committee on Economic, Social and Cultural Rights (CESCR).
• The general principles of IL include the principle of good faith and the one of equity.

I hope it makes things a little bit clearer for you and that you can now differentiate between private and public international law (in terms of both the issues at stake and subjects of the law).

Feel free to check out my other articles for more information or to leave a comment, opinion, question through the contact form, I’ll be happy to read your thoughts!

Photo 1 by Mika Baumeister on Unsplash. Euro sign in front of the European Central Bank in Frankfurt am Main, Germany.

Photo 2 by Mathias P.R. Reding on Unsplash. The flag-alley in front of the United Nations Office in Geneva, Switzerland.

Photo 3 by Giammarco on Unsplash. Old library, Trinity College of Dublin, Ireland.

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You can always let me know through the contact form if you have any questions or if I missed something!

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International bodies

Supra-national bodies that can have general objectives (such as the UN) or specific ones (such as the International Criminal Court) but they aim to implement these at the global level and to have a global impact.

International court of justice (ICJ)

Based in: The Hague (Netherlands).

​Establishment: It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN).

Mission: The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

Composition: The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

International Criminal Court (ICC)

Located in: The Hague (Netherlands).

​Establishment: At the 1998 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Its establishment has been codified into the Rome Statute which entered into force in 2002.

Mission: The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

​​The Court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court.

The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. ^{_{(click here to learn more about such crimes).}}

Composition: 18 judges.

The International Criminal Police Organization (INTERPOL)

Based in: Lyon (France).

​Establishment: The International Criminal Police Commission was created in 1923, and became the International Criminal Police Organization-INTERPOL in 1956.

Mission:  We have 195 member countries, and we help police in all of them to work together to make the world a safer place. To do this, we enable them to share and access data on crimes and criminals, and we offer a range of technical and operational support.

The General Secretariat provides a range of expertise and services to our member countries. This expertise supports national efforts in combating crimes across three global areas we consider the most pressing today; terrorism, cybercrime and organized crime.

Composition: INTERPOL has 195 member countries, making us the world’s largest police organization. They work together and with the General Secretariat to share data related to police investigations.

Each country hosts an INTERPOL National Central Bureau (NCB), which links national police with our global network. 

Countries come together at the annual General Assembly to decide policy, working methods, finances and activities. In addition, heads of NCB meet annually at a conference to share experiences.

United Nations (UN)

Based in: New-York (USA); European headquarter in Geneva (Switzerland).

​Establishment: In 1945 at the United Nations Conference on International Organization in San Francisco (USA).

Mission: It is a place where all the world’s nations can gather together, discuss common problems, and find shared solutions that benefit all of humanity.

Composition: Currently made up of 193 Member States, the UN and its work are guided by the purposes and principles contained in its founding Charter.

The UN is part of a wider “UN system” made of many institutions, funds, specialized agencies… You can find a list here.

One important entity, with regard to human rights, is the Office of the High Commissioner for Human Rights (OHCHR).

Office of the High Commissioner for Human Rights (OHCHR)

Based in: Geneva (Switzerland).

​Establishment: The UN General Assembly established The Office of the High Commissioner for Human Rights in December 1993 through its resolution 48/141 which also details its mandate.

Mission:

• Promote and protect all human rights
• Help empower people
• Assist Governments
• Inject a human rights perspective into all UN programmes

Composition:

Charter-based bodies

• Human Rights Council
• Universal Periodic Review
• Commission on Human Rights (replaced by the Human Rights Council)
• Special Procedures of the Human Rights Council
• Human Rights Council Complaint Procedure

Treaty-based bodies

There are ten human rights treaty bodies that monitor implementation of the core international human rights treaties:

• Committee on the Elimination of Racial Discrimination (CERD)
• Committee on Economic, Social and Cultural Rights (CESCR)
• Human Rights Committee (CCPR)
• Committee on the Elimination of Discrimination against Women (CEDAW)
• Committee against Torture (CAT)
• Committee on the Rights of the Child (CRC)
• Committee on Migrant Workers (CMW)
• Subcommittee on Prevention of Torture (SPT)
• Committee on the Rights of Persons with Disabilities (CRPD)
• Committee on Enforced Disappearances (CED)

Regional bodies

Regional bodies can have global of specific goals, and are supra-national, just as international bodies have, but their application will be geographically limited (for example, only countries located in Europe can join the European Union).

African level

African Union (AU)

Based in: Addis Ababa (Ethiopia)

​Establishment: It was officially launched in 2002 as a successor to the Organisation of African Unity (OAU, 1963-1999).

The Constitutive Act of the African Union and the Protocol on Amendments to the Constitutive Act of the African Union lay out the aims of the AU which are, inter alia:

• Achieve greater unity and solidarity between African countries and theiro people
• Promote peace, security, and stability on the continent;
• Promote democratic principles and institutions, popular participation and good governance;
• Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments;
• Promote sustainable development at the economic, social and cultural levels as well as the integration of African economies;
• Promote cooperation in all fields of human activity to raise the living standards of African peoples;
• Ensure the effective participation of women in decision-making, particularly in the political, economic and socio-cultural areas;
• Develop and promote common policies on trade, defence and foreign relations to ensure the defence of the Continent and the strengthening of its negotiating positions;
• Invite and encourage the full participation of the African Diaspora as an important part of our Continent, in the building of the African Union.

Composition: The African Union (AU) is a continental body consisting of the 55 member states that make up the countries of the African Continent.

The work of the AU is implemented through several principal decision making organs: The Assembly of Heads of State and Government, the Executive Council, the Permanent Representatives Committee (PRC), Specialised Technical Committees (STCs), the Peace and Security Council and The African Union Commission. 

Organs that handle judicial and legal matters as well as human rights issues include: African Commission on Human and Peoples’ Rights (ACHPR), African Court on Human and Peoples’ Rights (AfCHPR), AU Commission on International Law (AUCIL), AU Advisory Board on Corruption (AUABC) and the African Committee of Experts on the Rights and Welfare of the Child. The AU is also working towards the establishment of continental financial institutions (The African Central Bank, The African Investment Bank and the African Monetary Fund)

The Regional Economic Communities (RECs) and the African Peer Review Mechanism are also key bodies that that constitute the structure of the African Union.

American level

Organization of American States (OAS)

Based in: Washington D.C. (USA).

​Establishment: The OAS came into being in 1948 with the signing in Bogotá, Colombia, of the Charter of the OAS, which entered into force in December 1951.

Mission: The Organization was established in order to achieve among its member states—as stipulated in Article 1 of the Charter—”an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.”

Composition: Today, the OAS brings together all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the Hemisphere. In addition, it has granted permanent observer status to 69 states, as well as to the European Union (EU).

The OAS has created the Inter-American Court and Commission on Human Rights.

Inter-American Commission on Human Rights (IACHR)

Based in: Washington D.C. (USA).

Establishment: Created by the OAS in 1959.

Mission: The IACHR is a principal and autonomous organ of the Organization of American States (“OAS”) whose mission is to promote and protect human rights in the American hemisphere. 

The Charter establishes the Inter-American Commission on Human Rights (IACHR) as one of the principal organs of the OAS whose function is to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.

The work of the IACHR rests on three main pillars:

• the individual petition system;
• monitoring of the human rights situation in the Member States, and
• the attention devoted to priority thematic areas.

Composition:  The Commission shall be composed of seven members, who shall be persons of high moral character and recognized competence in the field of human rights, elected in a personal capacity by the OAS General Assembly from a list of candidates proposed by the governments of the Member States.

Inter-American Court on Human Rights

Based in: San José (Costa Rica).

​Establishment: In the ​1948 OAS charter; it entered into force in 1979.

Mission: The Inter-American Court exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures. It is an autonomous legal institution whose objective is to interpret and apply the American Convention.

Composition: The Court is composed of seven Judges, nationals of the member States of the OAS. They serve in their personal capacity and are elected by the General Assembly and are appointed for a 4-year period, renewable once.

Asian level

Association of South-East Asian Nations (ASEAN)

Based in: Jakarta (Indonesia).

​Establishment: 8 August 1967 in Bangkok, Thailand, with the signing of the ASEAN Declaration (Bangkok Declaration).

Mission: As set out in the ASEAN Declaration, the aims and purposes of ASEAN are:

• accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;
• promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;
• promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;
• provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres;
• collaborate more effectively to encourage further growth in the agriculture and industry, and trade sectors. This includes improving transportation and communications facilities and conducting studies on international commodity trade with the overarching goal of raising the living standards of ASEAN peoples;
• promote Southeast Asian studies; and
• maintain close and beneficial cooperation with existing international and regional organisations with similar aims and purposes, and explore all avenues for even closer cooperation among themselves.

Composition: The Founding Fathers of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei Darussalam then joined on 7 January 1984, Viet Nam on 28 July 1995, Lao PDR and Myanmar on 23 July 1997, and Cambodia on 30 April 1999, making up what is today the ten Member States of ASEAN.

European level

There are two main organisation in Europe, each with its own Court, and they are often mixed up. This is the European Council and the European Union, while they actually differ in terms of objectives and members. A quick difference before developing more each institution:

• The European Union (EU) is a mostly economic cooperation;
• The Council of Europe (CoE) is mostly active in the areas of human rights and in strengthening democracy.

See the CoE’s page “Do not get confused”: https://www.coe.int/en/web/about-us/do-not-get-confused

Council of Europe (CoE)

Based in: Strasbourg (France).

​Establishment: Signing of the Treaty creating the CoE in 1949.

Mission: This is a cooperation organisation.

Composition: The aim of the CoE is to integrate all European States. It has currently 47 member States out of 51 European States.

To integrate the CoE, the State must be a European State and share the same values regarding the rule of law, democracy and human rights.

Organs of the CoE:

• Committee of Ministers: This is the Council’s decision-making body and is made up of the ministers of foreign affairs of each member state or their permanent diplomatic representatives in Strasbourg. The Committee of Ministers decides Council of Europe policy and approves its budget and programme of activities.

• Parliamentary Assembly (PACE): The Parliamentary Assembly consists of 324 members of parliament from the 47 member states; the Assembly elects the Secretary General, the Human Rights Commissioner and the judges to the European Court of Human Rights; it provides a democratic forum for debate and monitors elections; its committees play an important role in examining current issues

• Congress of Local and Regional Authorities: The Congress of Local and Regional Authorities is responsible for strengthening local and regional democracy in its 47 member states. Composed of two chambers – the Chamber of Local Authorities and the Chamber of Regions – and three committees, it brings together 648 elected officials representing more than 150 000 local and regional authorities.

• Commissioner for Human Rights: The Human Rights Commissioner independently addresses and brings attention to human rights violations.

• The Secretariat.

The CoE created the European Court of Human Rights.

European Court of Human Rights (ECHR)

*Briefs and information on the Court available at: https://www.echr.coe.int/Pages/home.aspx?p=court/doc_info&c=

Based in: Strasbourg (France).

​Establishment: 1959 by the Council of Europe.

Mission: It is the only truly judicial organ established by the European Convention on Human Rights and ensures, in the last instance, that contracting states observe their obligations under the Convention.

It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.

Composition: It is composed of one Judge for each State party to the Convention (currently 47).

European Union (EU)

Based in: The EU institutions are based in several European cities as follows:

• Brussels (Belgium): The European Parliament; the European Council/Council of the EU; the European Commission; the European External Action Service; the European Economic and Social Committee; the European Committee of the Regions; the European Data Protection Supervisor.
• Strasbourg (France): The European Parliament.
• Luxembourg (Luxembourg): The European Parliament; the Court of Justice of the European Union; the European Court of Auditors; the European Investment Bank.
• Frankfurt (Germany): The European Central Bank.

​Establishment: The European Union is a long-term construction based on the evolution of the European Economic Community, among others. We speak of “European Union” since the Treaty of Maastricht (1992).

[ A few milestones in the EU construction:

1951 Paris Treaty: Creation of the European Coal and Steel Community.

1957 Treaty of Rome: European Defense Community and European Atomic Energy Community (EurAtom).

1986 Single Act (revision of the Rome Treaty): Introduction of a political cooperation area.

1992 Maastricht Treaty: We now speak of European Union. The EU does not replace the above-mentioned Communities but integrate them as pillars: The community pillar is made up of the 3 communities, it is a supranational pillar characterized by the logic of integration; the CFSP – common foreign and security policy; JHA – justice and home affairs.

1997 Amsterdam Treaty: It expands the scope of the first pillar as well as the powers of the Court.

2000 Treaty of Nice: It strengthens the decision-making role of the Parliament.

2007 Treaty of Lisbon: It modernizes the institutions -the European Council and the European Central Bank become components of the EU; the Court of Justice of the European Communities becomes the Court of Justice of the European Union; refers to an EU Charter of Fundamental Rights; officially consecrates the legal personality of the EU; disappearance of the pillared structure. ]

Mission: It is an integration organisation.

Composition: The EU is currently made of 27 Member states.

To join the EU, the State must be a European country, have stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy and the capacity to cope with competition and market forces in the EU; the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union.

EU organs: The EU is both a supranational and international organisation, as shows its organs composition:

• The European Parliament: Elected, it has three functions: legislative, budgetary and oversight.
• The European Council: Composed of Member states’ representatives, it has three functions, political, judicial (through arbitration), and legal (through nominations). The European Council is the EU institution that defines the general political direction and priorities of the European Union. Not to be confused with the Council of Europe!
• The Council or Council of the European Union: Composed of Member states’ representatives, it negotiates and adopts EU laws; coordinates member states’ policies; develops the EU’s common foreign and security policy; concludes international agreements; and adopts the EU budget.
• The European Commission: Created by the Rome Treaty, it is composed by commissioners. It has an initiative power in decision-making procedures, an executive power and a monitoring power.
• The Court of Justice of the EU (read more below): Monitors the application of the EU law.

Court of Justice of the European Union

*A booklet of information is available https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-05/cour_garante_qd-03-20-178-en-n.pdf

Based in: Luxembourg (Luxembourg).

​Establishment: 1952.

Mission: To ensure that “the law is observed” “in the interpretation and application” of the Treaties.

As part of that mission, the Court of Justice of the European Union:

• reviews the legality of the acts of the institutions of the European Union,
• ensures that the Member States comply with obligations under the Treaties, and
• interprets European Union law at the request of the national courts and tribunals.

Note: The Court of Justice of the European Union consists of two courts: the Court of Justice and the General Court (created in 1988). The Civil Service Tribunal, established in 2004, ceased to operate on 1 September 2016 after its jurisdiction was transferred to the General Court in the context of the reform of the European Union’s judicial structure.

Composition: One judge for each member state (currently 27 judges) two of which are elected as president and vice president, and 11 advocate general.

Middle East and North Africa (MENA)

The Arab League

Based in: Cairo (Egypt).

​Establishment: 2 March 1945. On the same day, the Charter of the Arab States has been adopted.

Mission: Cooperation between the Arab states and the development.

Composition: 22 Member states, Egypt, Iraq, Saudi Arabia, Syria, Lebanon, Jordan, Yemen, Morocco, Tunisia, Algeria, Mauritania, Libya, Sudan, Somalia, Djibouti, the Comoros, Oman, United Arab Emirates, Bahrain, Kuwait, Qatar, Palestine.

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