Author Profiles

John H. Currie, Faculty of Law, University of Ottawa

Craig Forcese, Faculty of Law, University of Ottawa

Valerie Oosterveld, Faculty of Law, University of Western Ontario

Joanna Harrington, Faculty of Law, University of Alberta

The Book

This blog updates the book with developments in international law.

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Thursday
Aug042011

Extraterritorial Liability and MNCs: Forum non conveniens in Quebec

By Craig Forcese

Cross-referencing: Ch. 9, pp. 675 et seq.

In Association canadienne contre l'impunité (ACCI) c. Anvil Mining Ltd., the Quebec Superior Court rejected an effort by Anvil to dismiss a civil suit brought against the company relating to killings by Congolese soldiers in 2004.  At issue (in part) in this April 2011 decision was whether the Quebec court should decline jurisdiction to hear the case on the basis of forum non conveniens.  The latter, a common law doctrine incorporated into the Quebec civil code, permits a court to decline to hear a case better adjudicated in another jurisdiction.  It has been the stumbling point for at least some lawsuits brought against Canadian multinational companies concerning their overseas operations.  In Anvil, however, the court held that the test was whether the company had shown that a foreign jurisdiction was clearly the more appropriate venue to hear the case.  Anvil was unable to do so, and the court therefore dismissed Anvil's dismissal request.  The matter is now on appeal. 

Thursday
Apr142011

R2P and Libya: (Still) A Tool of Discourse

By Craig Forcese

Cross-referencing: Ch. 14, p.857 et seq

In part because of its Canadian ties, the famous "responsibility to protect" (R2P) concept is commonly invoked in Canadian discussions of use of force in international affairs.  These discussions are sometimes short on doctrinal clarity, and R2P is occasionally perceived as some sort of self-standing justification for armed intervention in response to humanitarian crises.  It is not.  Instead, as the recent Libya experience suggests, it is at best a moral justification for the conventional exercise of Security Council powers.

As discussed in International Law, the R2P concept stems from a 2001 report of the International Commission on Intervention and State Sovereignty. This study had a discernable impact on, among other things, the Report of the UN Secretary-General's High-Level Panel on Threats, Challenges and Change (2004), and then on the 2005 World Summit Outcome, a UN General Assembly resolution.  In 2006, the Security Council itself issued SC Res 1674, invoking the R2P concept (at para. 4) in outlining the responsibilities of states in protecting civilian populations from genocide, war crimes, crimes against humanity and ethnic cleansing (itself typically a subset of at least one of the first three crimes).

None of this makes of R2P a legal principle that relaxes conventional strictures on the use of force in international affairs, or the admonishments of Article 2(4) of the UN Charter barring such use of force.  Non-consensual use of force on the territory of another states must still fit within the envelope of self-defence or Security Council authorization.  While the precise contours of these concepts may brook disagreement (witness the 2003 Iraq war), they are not infinitely pliable and simply do not admit of a Kosovo-style humanitarian intervention.  (The 1998 air war in Kosovo was not, in its original guise, authorized by Security Council resolution and was never plausibly an exercise of self-defence.  It was, to paraphrase the most prominent distillation of the conflict, illegal, even if perceived by the NATO allies and like-minded entities as legitimate.)

R2P does not change this fact -- it is no treaty and there is no serious claim to the customary international law status of a self-standing right to intervene militarily in humanitarian crises, simply because it is a humanitarian crisis.

R2P is, instead, a useful concept for the Security Council in justifying its exercise of its Chapter VII powers.  The first meaningful application of this "code of conduct" is SC Res. 1973, authorizing force (using the conventional code of all methods necessary) to protect civilians and, among other things, impose a no fly zone over the country.

This is not, of course, evidence that R2P will heretoafter guide Security Council deliberations -- that body remains a political one and selective in its deliberations (why, e.g., intervention in Libya but not the several other Middle Eastern states with proto-civil wars brewing or underway?).   And so R2P may be a useful addition to the parlance and moral justifications available to the Security Council in exercising its powers.  It does not, however, change those powers or compel their deployment. 

Still, more optimistically, there may come a day when the concept becomes so engrained in the international discourse that the Security Council may find it difficult politically simply to decline to exercise its powers in situations where R2P properly applies.  Put another way, it weakens the conventional discourse on sovereignty, invoked by at least some Security Council members to justify abstinence.  It internationalizes what not so long ago was the purely domestic.

Wednesday
Apr132011

The ICJ Refines the Art of Jurisdictional Formalism: Georgia v. Russia

By Craig Forcese

Cross-referencing: ch. 3, p.263 et seq.

In April 2011, the International Court of Justice dismissed a complaint brought before it by Georgia in relation to Russia's conduct in South Ossetian and Abkhaz, secessionist territories in Georgia.  The complaint was grounded in the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and alleged, inter alia, that Russia has engaged in, sponsored, defended and supported racial discrimination in the secessionist regions.

ICJ jurisdiction over the dispute was sought in Art. 22 of the Convention, which provides: “[a]ny dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement”.

In ultimately declining jurisdiction, the Court concluded that the phrase "which is not settled by negotiation" was a precondition on the matter being adjudicated at the ICJ.  It held that Georgia had not negotiated on the question of racial discrimination with Russia (applying an arguably narrow understanding of what constitutes negotiation), and that the ICJ was, therefore, without jurisdiction in the matter.

Sadly, this decision constitutes a further refinement of the ICJ's inimitable ability to limit its own relevance.  An embarrassingly slender court docket is rendered even more slender if one counts only those decisions on which the ICJ has reached the merits, since its inception in the 1940s.

On the particulars of this case, the ICJ adopts a highly technical and doubtful "ordinary meaning" interpretive doctrine to craft preconditions on its jurisdiction.  As the strong dissent from five of the ICJ's judges notes, the majority's construal rests, essentially, on a redundancy argument: if the disputed phrase is not a precondition, its presence would be unnecessary as a "dispute which is not settled" is no dispute at all, and the phrase would be an unnecessary modifier of the the word "dispute". 

This position is a failure of imagination, if nothing else: the provision "dispute which is not settled by negotiations" could equally be viewed, not as a precondition to jurisdiction, but as a mootness provision.  That is, the ICJ has jurisdiction only to the extent that the dispute remains extant, and not where it has been rendered academic by resolution through negotiation (or the other procedures outlined in the CERD).

In the end, the ICJ decision does nothing more than interpose a sort of "exhaustion of alternative dispute settlement methods" requirement, one that tarries but does not necessarily end this case.  Presumably, it is open now to Georgia to invite negotiations, the failure of which reignites this case.  But at the cost of delay and irresolution, and now with a jurisdiction-shy ICJ that will forever after need to decide whether these negotiations were good enough or not to satisfy the asserted "precondition".  The ICJ does itself no favours in rendering this sort of decision, hamstringing itself on such doubtful grounds.

Tuesday
Apr052011

Canada supports the UN Declaration on the Rights of Indigenous Peoples – or not?

By Joanna Harrington

Cross-referencing: Chapter 4(B)(6), “Self-Determination”, pp. 327-329

While it received little coverage in the news, on November 12, 2010, Canada made an announcement declaring its support for the United Nations Declaration on the Rights of Indigenous Peoples, albeit with language to emphasize the declaration’s aspirational nature and its non-legally binding status. Canada also used the opportunity to reiterate its view that the declaration does not reflect customary international law, nor change Canadian laws. But nevertheless, Canada has now expressed its support for the Declaration, suggesting that the aim of its change in position is a domestic one, and a political one, with the hope that this support will lead to improved relations with First Nations, Inuit, and Métis peoples in Canada.

Unlike almost all declaratory texts on matters of human rights, which have been adopted by consensus within the UN General Assembly, the proposed text of the United Nations Declaration on the Rights of Indigenous Peoples was put to a vote, with that vote taking place on September 13, 2007. Four states voted against adoption - Australia, Canada, New Zealand and the United States – but three of the four states have now changed their position, and the fourth may be joining them soon. The occasion of the vote, however, remains an historical fact, with the opportunity to vote having now passed. One does not sign a declaration.

The first of the four states to change its position on the Declaration was Australia, with a federal election in November 2007 resulting in a change in government and a change in position. A formal statement of support for the declaration was made by the Indigenous Affairs Minister Jenny Macklin on behalf of the Australian Government on April 3, 2009. New Zealand then followed suit, expressing its support for the Declaration a year later, in a speech delivered by New Zealand’s Minister of Māori Affairs, Dr Pita Sharples, during the first day of the ninth session of the UN Permanent Forum on Indigenous Issues in New York on April 19, 2010.

Now Canada has changed its position, at least formally, albeit that Canada has stated that it still retains its previous concerns about some of the Declaration’s provisions. Canada has also used its statement of support to reiterate Canada’s main areas of concern, identified as: “the provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties.” This language is identical to that used in Canada’s explanation of position, delivered by Ambassador McNee before the 2007 vote in the General Assembly: see pages 12-13 of the official record.

The impact of such unilateral statements of support, delivered in arenas external to the UN General Assembly, and long after the vote has taken place, will be something to watch. It may also be a technique that encourages universal support, with The Washington Post reporting on December 16, 2010 that President Obama has announced that the United States will support the Declaration, reiterating that the declaration is a non-binding text.

Wednesday
Mar232011

Making the ICCPR Cost: The ICJ's Diallo Judgment

By Craig Forcese

Cross-referencing: Ch. 9.

In November 2010, the International Court of Justice released its final judgment in the long-standing case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)This case is best known for its earlier, 2007 ruling on diplomatic protection and exhaustion of local remedies, as well as diplomatic protection in relation to corporations.

In the 2010 final judgment, the ICJ found (unanimously) that the detention and expulsion of Guinean national Diallo violated, inter alia, the International Covenant on Civil and and Political Rights (specifically, articles 9 and 12) and concluded that Congo "is under obligation to make appropriate
reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences
of the violations of international obligations".

The decision is less notable for its contribution to the substantive understanding of these ICCPR rights than for its very existence: typically, compliance with ICCPR rights in a individual case is assessed, if at all, by the UN Human Rights Committee, pursuant to the first Optional Protocol of the ICCPR.  The HRC is empowered to, at best, issue "views", of limited legal significance.

At least in principle, a decision of the ICJ is on a different legal footing: a decision in a contentious case between states at the ICJ is binding on those parties.  Whether states will comply is a different question -- the ICJ has no baliff -- but there can be little dispute that a state's failure to do so in an infraction of its international legal obligations.  Of particular note is Art. 94 of the UN Charter:

  1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
  2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

In the result, Diallo represents one of the few instances where non-compliance with the ICCPR has produced a binding ruling on compensation by an international tribunal.  It is also one of the few instances where one state has seen fit to take another state to task for its failures under the ICCPR to the point of adjudicating the matter before an international tribunal.

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